New-York & Sharon Canal Co., & Sharon Canal Co. v. Fulton Bank

7 Wend. 412

• Court: New York Supreme Court
• Decided: July 15, 1831
• Status: Published

Opinion

By the Court,

Savage, Ch. J.

It cannot be necessary to decide whether it is in the power of the two corporations, who are plaintiffs, to consolidate their stock, or to form a partnership. General principles are against the power of corporations to do such acts. They have no powers but such as are granted, and such as are necessarily incident to the grant made to them. Corporations at common law have certain powers, but not such as would authorize the forming of a partnership, or the consolidation of two corporations into one.

These two companies had certain monies in the hands of their officer ; they were both interested in those monies* and probably in equal degree. Not being partners, they were tenants in common ; in that character they made the deposit of the money, and in'1 that character I can see no objection to their'sustaining an action for it. Cannot two banks or insurance companies take security from a person in failing circumstances, indebted to both 1 May they not be mortgagees in the same mortgage, or obligees in the same bond ; or may they not take together an assignment of a chattel 1 If they may they can enforce their rights by action. Without looking into the transaction by which the plaintiffs became jointly interested in the fund in question, it seems to me sufficient to know that they were so interested. Their money is withheld from them ; how are they to obtain it 1 Can each maintain an action for his share ? The bank cannot know what is the share of each, and are not bound to take the responsibility of deciding that question. If each cannot bring a separate action, and both cannot unite in a joint action, then the defendants are safe in the possession of a fund acknowledged to belong to the plaintiffs ; or the plaintiffs are driven into a court of chancery. In my opinion, the law affords a remedy, and in this form of action.

The nonsuit must be set aside, and a new trial granted, costs to abide the event.