Rogers v. Pell

35 N.Y.S. 17, 89 Hun 159, 96 N.Y. Sup. Ct. 159, 69 N.Y. St. Rep. 213

Opinions

PRATT, J.

The assignment under which plaintiff claims is sought to be sustained by virtue of a resolution of the directors of a corporation, by which they authorized their president to nominate and execute to a proper person an assignment of all the property of the corporation. Thereafter he executed in the name of the corporation an instrument which purported to convey to himself as assignee' the property which was afterwards attached by the defendants. The validity of the instrument is attacked on various grounds, one of which is that under the resolution the president could not lawfully execute a conveyance to himself. It is also suggested that the power to select an assignee was not one which the directors could delegate. We think it clear that in the selection of an assignee the corporation had a right to the unbiased discretion of its officer. That could not be had when he occupied the antagonistic positions of grantee and the active agent of the grantor. What would have been the result had the resolution left nothing to his discretion, and designated the president as the assignee, we need not discuss. In that case it might be agreed that in substance the assignment was the work of the directors, and the president but a ministerial agent. But in the present case the assignment was the work of the president. WTe think the effort to vest the title in himself failed. It follows that the attachments were a valid levy on the property of the corporation, and that the order appealed from must be affirmed, with costs.

DYKMÁN, J., concurs.