
    Stephen V. Harkness, App’lt, v. The Manhattan Railway Co., Resp’t.
    
      (New York Superior Court, General Term,
    
    
      Filed November 21, 1887.)
    
    1. Railroads -Construction of—Agreement to pay rent—Right of STOCKHOLDER TO MAINTAIN AN ACTION.
    The defendant company by a certain lease agreed to pay to the New York company a, certain sum of money as rent to pay the principal and interest of certain bonds of the New York company, and further agreed as follows: “ Article 2. The Manhattan company guarantees to the New York company an annual dividend of ten per cent on the capital stock of the New York York company to the amount of $6,500,000; that is to say, the Manhattan company will, each and every year during the term hereby granted, beginning with the 1st day of October, 1879, pay to the New York company $650,000, free of all taxes, in equal quarter-yearly payments of $162,500, on the first day of January, April, July and October in each year, the first of said payments to be made on the 1st day of January, 1880. The Manhattan company will, from time to time, execute in proper form a guarantee to the above effect printed or engraved upon the certificates of stock of the New York company.” In pursuance of this agreement the defendant caused to be printed on the certificates of plaintiff’s stock, “ The Manhattan Railway Company, for value received, has agreed to pay to the New York Elevated Railway Company an amount equal to ten per cent per annum on the capital stock of the whole company—that is, on six and a half million dollars, payable quarterly commencing January 1, 1880.” Held, that this agreement gives a stockholder no cause of action against the Manhattan company to recover the amount to be paid to the New York company; that the Manhattan company did not thereby agree that the stockholders of the New York company should receive the money it agreed to pay to it, or that such money should be used for the purpose of a dividend on the stock of the New York company.
    2. Same—Liability of lessee after surrender of lease.
    The defendant company paid to the New York company the amount called for by said agreement, as modified by an agreement entered into October, 1881, down to May, 1884. It subsequently repudiated the agreement and, in a certain action between the parties thereto, a judgment was entered declaring the agreement null and void, and the samé was set aside and annulled as to the defendant herein. Subsequently an agreement was entered into and ratified by the stockholders of both companies, by which the Manhattan company delivered the leasehold property to the New York company, who took exclusive possession thereof. Sometime thereafter a new agreement between the elevated railroad companies was executed. Held, that the surrender of the lease and the acceptance of the demised property was valid. That after the surrender of the said lease there was no obligation or liability of the Manhattan company to the New York company.
    8. Same—Power of company to surrender lease.
    
      Held, that neither the agreement in question or the agreement whereby the lease was surrendered were beyond the corporate power of the contracting parties. That there was no evidence from which it could be held that a majority of the stockholders were trampling upon the right of the minority and acting in fraud of them.
    
      4. Corporations—Stockholders—Right of majority.
    A person purchasing the stock of a corporation thereby assents that a majority of the stockholders shall control the policy of the corporation, and, so long as the acts of the majority are in good faith and within the powers of the corporation, and are not prohibited by law, they are valid.
    Appeal from a judgment entered in favor of the defendant on the trial of this action at special term, and from an order denying a motion for a new trial on the judge’s minutes.
    
      E. B. Cowles and William H. Arnoux, for app’lt; A. J. Vanderpoel, Julian T. Davies and Charles A. Gardner, for resp’t.
   O’Gorman, J.

—In this case the learned judge at special term dismissed the complaint, and plaintiff appealed from the judgment.

No authoritive statement being made on the part of the plaintiff that all the testimony taken at the trial is included in the record, it must be presumed that the findings of fact are supported by competent and sufficient evidence. Porter v. Smith, 35 Hun, 118.

A close and careful consideration of the pleadings, the plaintiff’s request to find, the findings of fact and the conclusions of law therein, have satisfied us that no error has been committed by the court below, and that the plaintiff has not shown himself to be entitled to the judgment or relief demanded in the complaint, or to any judgments in his favor or relief in this action.

The judgment and order appealed from are affirmed with costs, on the opinion of the trial judge.

The following is the opinion of the trial judge, referred to in the above opinion:

Ingraham, J.

—This action is brought by plaintiff as a stockholder of The New York Elevated Railway Company,, on behalf of himself and all other stockholders who may join with him in this action, to enforce an agreement or lease, dated the 20th day of May, 1879, whereby the New York Elevated Railway Company leased its railways and other property rights and franchises of every description to-the defendant, the Manhattan Railway Company. By that lease, the Manhattan Company agreed to pay to the New York Company a certain sum of money as rent, to-pay the principal and interest of certain bonds of the New York Company, and further agreed, as follows:

“Art. 1. The Manhattan Company guarantees to the New York Company an annual dividend of ten per cent on the capital stock of the New York company to the amount of $6,500,000; that is to say, the Manhattan company will each and every year during the term hereby granted, beginning with the 1st day of October, 1879, pajr to the-New York company $650,000, free of all taxes, in equal quarter yearly payments of $162,500 each on the 1st day of January, April, July and October, in each year; the first of said payments to be made on the 1st day of January, 1880. The Manhattan company will from time to time execute in proper form a guarantee to the above effect, printed or engraved upon the certificates of stock of the-New York company.”

In pursuance of this agreement the defendant, the Manhattan company, caused to be printed or engraved on the certificates of plaintiff’s stock as follows:

“The Manhattan Railway Company, for value received, has agreed to pay to the New York Elevated Railway Company an amount equal to ten per cent per annum on the capital stock of the whole company, that is on six and a half million dollars, payable quarterly, commencing January 1, 1880.”

The complaint demands judgment that the Manhattan company pay to the New York company dividends at the rate of ten per cent per annum that would accrue since April, 1881; that the defendant pay to plaintiff the dividends due to him upon his stock; that the defendant be restrained from doing anything prejudicial to the rights of the plaintiff, and that plaintiff have such other relief as may be just.

It is clear that this agreement gives a stockholder no cause of action against the Manhattan company to recover the amount to be paid to the New York company. The agreement is to pay a certain sum of money to the corporation, the'New York company.

This sum is fixed as ten per cent of the outstanding stock of the New York company. Nothing was to be paid to the individual stockholders,nor did the Manhattan company in any way agree that the stockholders of the New York company should receive the money it agreed to pay to the New York company, or that such money should be used for the purpose of a dividend on the stock of the New York company.

A payment to the New York company of the quarterly payments would have released the Manhattan company from its obligations under the lease.

The case of Wheat et al. v. Rice (97 N. Y., 296) appears to be conclusive on this point. In that case the plaintiff' agreed “to assume and pay one-quarter of the indebtedness ” of the copartnership. The court held that no promise was made to pay any single one of the creditors or for the benefit of any one of them, and that a creditor of the co-partnership could not maintain an action under the agreement against the plaintiff.

That case is much stronger than the case at bar, as there was in that case an agreement to pay the indebtedness, while in this case there is no agreement to pay any obligation of the New York company to the plaintiff or to its stockholders. It is simply an agreement to pay the corporation.

As soon as the money was paid to the New York company it became property of the corporation, liable for its debts, and the stockholders had no claim to it until by some act of the corporation it had been appropriated to them.

There was no agreement of the New York company that the money to be received- should be paid to its stockholders, and there was therefore no obligation on the part of the New York company to its stockholders, which the Manhattan company undertook to discharge.

The principle involved is entirely different from the case of Lawrence v. Fox (20 N. Y., 268), and cases of like character, and this is the view taken of this question by the chief justice of this court when this, action was before him and by Mr. Justice Cullen in the Beveridge Case.

The only relief to which the plaintiff would, under any circumstances, be entitled, would be in a proper case to have the obligation of the Manhattan company to the New York company enforced; but before such relief could be granted it must appear that such an obligation existed.

In October, 1881, an agreement was made between the New York company and the Metropolitan company and the Manhattan company, by which the lease of 1879 was modified so that the sum to be paid to the New York company by the Manhattan company was six per cent upon its capital stock instead of ten per cent, and in other important particulars. This agreement was ratified by the stockholders of the company on January 10, 1882, 26,641 shares of stock being represented and voting at this meeting, and 25,904 shares of stock voted in favor of ratifying the new agreement, and 737 shares voted against such ratification.

That this agreement of October, 1881, was binding upon the New York company after it was ratified by the vote of the stockholders is clear. The directors of both the Manhattan and New York companies being substantially the same, the agreement would, under the decision of Mr. Justice Van Brunt in the case of The Metropolitan Railway Company v. The Manhattan Railway Company, hereafter referred to, have been voidable at the election of either of the corporations; but when ratified by the majority of the stockholders it became binding.

There is no evidence to show that the vote of the stockholders, ratifying the October, 1881, agreement, was induced "by any fraudulent act or representation of the directors, and the large majority by which the agreement was ratified shows that the stockholders" of that company were practically unanimous in ratifying the agreement as being for the best interests of the company.

The Manhattan company paid to the New York company the amount called for in the October agreement down to May, 1884. It appears that subsequently the Metropolitan company repudiated that agreement and, in an action in which the Metropolitan company was plaintiff, and the defendant, in this action and others, were defendants a judgment was entered on May 27,1884, declaring the agreement null and void as between the parties to that action or any of them, and the same was set aside and annulled as to the defendants to this action on the ground that the stockholders of the Metropolitan company had not acquiesced in the agreement of October twenty-one.

Judge Van Brunt’s conclusion is, “That the directors of the metropolitan company had no power to modify the lease of May, 1879, in the manner that they did by the October agreement without the assent of the stockholders, and that if they had such. power, the presence of the directors in the metropolitan board, who were also directors in the Manhattan company at the time of the execution of the October agreement, gave either company the right in equity to repudiate those contracts • within a reasonable time, although the .contracts may have been perfectly valid at law.”

After the announcement of Judge Van Brunt’s decision, a meeting of the stockholders of the New York company was called to take into consideration the relations between the elevated railway companies as affected by such decision, and adopt such measures as the stockholders may deem best for the interest of the company.

Two agreements were presented to that meeting, one of which was a surrender of the lease of 1879 and a reconveyance of the leasehold premises from the Manhattan company to the New York company, and the agreements were approved and ratified by a vote of 57,836 shares of stock in favor of, and 520 shares of stock opposed, and leaving out of the majority all the stock voted on by the Manhattan company, there was still a large majority in favor of the ratification of the agreement. Subsequently, about May, 1884, the Manhattan company delivered the leasehold property to the New York company, who took exclusive possession thereof, and retained such possession and control until about August 1, 1884, when a new agreement between the elevated railway companies was executed.

It is clear that this surrender of the lease and the acceptance of the demised property was valid. If the original lease of 1879 was valid, the parties to it could surrender it, and upon its surrender it became abrogated and all subsequent obligations under it avoided. If this agreement to surrender the lease had been made by the directors of the two companies without the consent or ratification of the stockholders of the company, it would, under the circumstances, and under the rules as stated by Mr. Justice Van Brunt in the Metropolitan Company Case before referred to, have been voidable at the option of the corporation, but here the corporations had never elected to avoid the agreement to surrender, but on the contrary had ratified and adopted it.

The Case of Pierson v. The Concord Road, decided by the supreme court of New Hampshire, does not apply. It was there found as a fact that the two upper roads had bought a controlling interest in the Concord road for the purpose of making with themselves as controlling managers of the Concord road contracts more favorable to themselves, and they had accomplished their purpose, and the court held that no director or stockholder in the upper road could act as a director of the Concord road in making agreements between the Concord road and the upper roads.

In the case' at bar the agreements of 1881, and May, 1884, were as before stated submitted to the stockholders-of the road and by them ratified; and so far as appears, leaving out the shares owned by the Manhattan Company, and by the directors of the Manhattan Company, there was a majority of the stockholders present and voting in favor of ratifying the agreements.

I am clearly of the opinion that after the surrender of the lease in May, 1884, there was no obligation or liability of the Manhattan Company to the New York Company.

I have not considered the question as to the validity of the resolutions passed by the New York Company in relation to dividends on the stock of the Manhattan Company at the time of the execution of the May, 1884, agreement. It does not appear that such resolutions were ever carried into effect, and by the subsequent agreement between the parties it was abrogated.

Nor is the validity of the agreement of August 1,-1884, involved in the determination of this action. The agreement of August 1, 1884, is not set forth in the complaint. As the agreement or lease of 1879 is abrogated and not in force, I do not see how plaintiff can obtain any relief in this action. This is substantially the same conclusion as that reached- by Mr. Justice Culler in the Beveridge Case.

There is no evidence in this case that the New York Company had declared any dividend on the stock held by plaintiff, nor did plaintiff demand a dividend at the rate of six per cent; plaintiff is not therefore entitled to judgment for the dividends at six per cent.

The elaborate argument submitted by counsel for the plaintiff has been carefully considered, but it appears to me that the views hereinbefore expressed dispose of the action, and I consider a further discussion unnecessary-assuming that the lease of 1879 is valid.

Neither of the agreements of October, 1881, or May, 1884, are beyond the corporate power of the contracting parties, nor is there any evidence from which it can be held that a majority of the stockholders are trampling upon the right of the minority and acting in fraud of them.

A person purchasing stock of a corporation thereby of necessity assents that a majority of the stockholders shall control the policy of the corporation and so long as the acts of the majority are in good faith, and within the powers of the corporation, and are not prohibited by law they are valid, and a dissenting stockholder" has no right to ask a court of equity to compel the majority of the stockholders to accept his views of the management of the company, and I can see nothing in either of the agreements mentioned, or in the acts of the stockholders in adopting and ratifying them which would show such' fraudulent mismanagement of the corporate property or franchise as would justify a court of equity in interfering.

On the whole case I think the defendant is entitled to judgment, with costs.  