In re the Diocesan Auxiliary to the Cathedral of St. John the Divine

New York Supreme Court

In re the Diocesan Auxiliary to the Cathedral of St. John the Divine

119 Misc. 610

DecidedNovember 15, 1922

StatusPublished

This text of 119 Misc. 610 (In re the Diocesan Auxiliary to the Cathedral of St. John the Divine) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Diocesan Auxiliary to the Cathedral of St. John the Divine, 119 Misc. 610 (N.Y. Super. Ct. 1922).

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Opinion

Marsh, J.

This is an application by a membership corporation for leave to sell its real property. The corporation is managed by an executive board of twenty-seven members, of whom fourteen concurred in a resolution approving the sale and adopted at a meeting duly called and held. Section 71 of the General Corporation Law prescribes that a petition of a corporation for leave to sell real estate shall include, among other things, a statement that the sale has been authorized by a vote of at least two-thirds of the directors, trustees or managers. In specifying the requirements for sale by a membership corporation, however, section 13 of the Membership Corporations Law provides that when the whole number of directors is not less than twenty-one, the vote of a majority of the whole number shall be sufficient. The application under consideration accordingly presents a conflict between these two sections. While the Membership Corporations Law is not technically a special law, it is of more limited application than the General Corporation Law and, therefore, falls within the principle under which, other things being equal, special laws áre held to prevail over general laws relating to the same subject-matter. Suth. Stat. Const.' (2d ed.) § 274. It appears, moreover, that prior to 1900 the Membership Corporations Law contained the same requirement of a two-thirds vote in every case as was found in section 3391 of the Code of Civil Procedure, which is the predecessor of section 71 of the General Corporation Law. The amendment permitting sale by the vote of a majority where [611]*611the number of directors is more than twenty-one was made by chapter 208 of the Laws of 1900. Although no amendment was made at the same time in section 3391 of the Code, the new substantive provision must take precedence over the older requirement of procedure. Application granted. Order signed.

Ordered accordingly.

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Marsh, J.

This is an application by a membership corporation for leave to sell its real property. The corporation is managed by an executive board of twenty-seven members, of whom fourteen concurred in a resolution approving the sale and adopted at a meeting duly called and held. Section 71 of the General Corporation Law prescribes that a petition of a corporation for leave to sell real estate shall include, among other things, a statement that the sale has been authorized by a vote of at least two-thirds of the directors, trustees or managers. In specifying the requirements for sale by a membership corporation, however, section 13 of the Membership Corporations Law provides that when the whole number of directors is not less than twenty-one, the vote of a majority of the whole number shall be sufficient. The application under consideration accordingly presents a conflict between these two sections. While the Membership Corporations Law is not technically a special law, it is of more limited application than the General Corporation Law and, therefore, falls within the principle under which, other things being equal, special laws áre held to prevail over general laws relating to the same subject-matter. Suth. Stat. Const.' (2d ed.) § 274. It appears, moreover, that prior to 1900 the Membership Corporations Law contained the same requirement of a two-thirds vote in every case as was found in section 3391 of the Code of Civil Procedure, which is the predecessor of section 71 of the General Corporation Law. The amendment permitting sale by the vote of a majority where [611]*611the number of directors is more than twenty-one was made by chapter 208 of the Laws of 1900. Although no amendment was made at the same time in section 3391 of the Code, the new substantive provision must take precedence over the older requirement of procedure. Application granted. Order signed.

Ordered accordingly.

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Bluebook (online)

119 Misc. 610, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-diocesan-auxiliary-to-the-cathedral-of-st-john-the-divine-nysupct-1922.