Opinion
May 5, 1943.
Present — Crosby, P.J., Cunningham, Dowling, Harris, and McCurn, JJ.
Submission dismissed, without costs. Memorandum: While it is true that a corporation may, in some circumstances, purchase and own its own stock, it may not do so to the detriment of creditors. In any case it may not purchase its own stock with any of its funds except surplus. (Penal Law, § 664, subd. 5; McGill Co. v. Underwood, 161 App. Div. 30; Moses v. Soule, 63 Misc. 203, affd. 136 App. Div. 904.) The agreed statement of facts does not inform us that plaintiff used only surplus in acquiring ownership of its own stock; and we have no assurance from the record that there are not creditors of the plaintiff whose rights are involved. We think the case of Wood v. City of Salamanca ( 289 N.Y. 279) compels us to dismiss the proceeding. All concur. (Submission of controversy on an agreed statement of facts in an action for a declaratory judgment construing a trust indenture.)