Summary
In Matter of Salvator (268 App. Div. 919) the court said that the failure of the beneficial owners to record the stock in their names "affords a presumption that they intended to permit the present record holders to vote the stock".
Summary of this case from Matter of Flagg-Utica Corp. v. BaseliceOpinion
November 20, 1944.
Proceeding pursuant to section 25 of the General Corporation Law to set aside an election of officers and directors of the corporation on the ground that the participants at such elections were not stockholders of record. Order denying motion reversed on the law, without costs, the motion granted, without costs, and a new election of directors is ordered to be held at a meeting of qualified stockholders of record at a time and place to be fixed in the order to be entered hereon. In the meantime, the holding of any election is enjoined. The facts do not warrant an exception to the general rule, in accordance with the statutes (Stock Corporation Law, §§ 10, 45, 47), that stockholders of record and no others are entitled to vote. If Charles Masholie and the receiver are entitled to be recorded on the books of the corporation as owners of the stock, as they claim, it is their obligation to procure certificates of the shares in their names and to make application for transfer if they desire the right to vote. The judgment of June 12, 1940, so expressly provides with respect to Masholie. Their failure to do so, particularly in the absence of any explanation or excuse for their inaction, affords a presumption that they intended to permit the present record holders to vote the stock. ( Kresel v. Goldberg, 111 Conn. 475, 478; In re Empire Finance Corporation, 1 F. Supp. 298, 299.) We express no opinion, at this time, as to the right of a receiver in supplementary proceedings to vote the stock of a judgment debtor, save to point to the omission in our statute (Civ. Prac. Act, § 807) to endow the receiver with personal powers exercised by the debtor, as distinguished from the inclusion of such power in the statute relating to the title of a trustee in bankruptcy. (U.S. Code, tit. 11, § 110; see opinion of LEHMAN, J., in Maurice v. Travelers Insurance Co., 121 Misc. 427, 432, 433.) Settle order on notice. Close, P.J., Hagarty, Carswell, Johnston and Aldrich, JJ., concur.