
    In the Matter of the Application of the Directors of the Christian Jensen Company Limited, for a Voluntary Dissolution.
    
      (New York Superior Court, General Term,
    
    
      Filed July 2, 1891.)
    
    Corporations—Voluntary dissolution—Order.
    Where, in voluntary proceedings for the dissolution of a corporation, the petition prayed for j' the dissolution of the corporation," and the order required all persons interested in it to show cause ‘ ‘ why the prayer of the petition should not be granted, Held,, that the order was a substantial compliance with § 2423 of the Code of Civil Procedure, which provides that the court must make an order to show cause “ why the corporation should not be dissolved.”
    Appeal from parts of an order made at special term restraining the appellants as creditors from prosecuting certain suits and proceedings.
    
      John Fennel, for app’lts ; John C. Coleman, for resp’t
   Per Curiam.

—The order should be affirmed, with ten. dollars costs and disbursements upon the opinion of the learned judge at special term.

The receiver for the appellants moved for an order permanently restraining and enjoining William Eggert and Edward Eggert, the sheriff of the county, Charles Wahlig, Frank A. and Frederick Wahlig, Michael Goode, city marshal, and all other persons, from taking any further steps in various actions and proceedings heretofore taken by or on behalf of them or either of them against “ The Christian Jensen Co.’’

Second. Directing the receiver to borrow sufficient money to enable him to properly box and stamp certain segars of the corporation and prepare the same for sale, and to issue receiver’s certificates for any sums so borrowed.

Third. To made such arrangement as may be equitable and reasonable with the landlord of the premises where said segars are, for the use of said premises until April 1st next.

Fourth. Directing the receiver to sell all of the property of the Christian Jansen Company, Limited, except book accounts.

The following was the opinion of McAdam, J., at special term:

“Jurisdiction of the subject matter is conceded, and it is also conceded that the petition is in proper form and contains all the statutory requirements. The petition prays for ‘ the dissolution of the corporation,’ and the order requires all persons interested in it to show cause ‘ why the prayer of the petition should not be granted.’

“ The order is entitled in the proceeding which expressed its purpose, and refers to the petition on file. This is a substantial, if not literal compliance with the statute, and all the law requires. The objection to the order is that it should have required those interested to show cause ‘ why the corporation should not be dissolved.’ It did so state, not in words repeated, but in words so plain that repetition was unnecessary. The object of the proceeding was the dissolution of the corporation; the petition prayed for a dissolution, and requiring those interested to show cause ‘ why the prayer of the petition should not be granted,’ intelligently required them to show cause ‘ why the corporation should not be dissolved.’ It meant that, could mean but that, and no person of ordinary intelligence would claim that he understood anything different. The objection is a mere juggle on words, not meaning; is one of form, not substance, and jurisdiction even.in special proceedings does not depend on so fine a thread. It is a rule in special as well as in other proceedings, to look at substance, not form so long as there is a substantial compliance. The form used was taken literally from Abbott’s New Forms Yol. 1, p. 668, and anything that leaves the hands of Austin Abbott comes well recommended.

“In re Pyrolusite Co., 29 Hun, 429 ; 3 Civ. Pro. R., 270, the petition was defective, and no jurisdiction was in consequence aquired. In pointing out its numerous defects, the court incidentally referred to the form of the order, and said it did not comply literally with § 2243 of the Code. If that so-called defect had been, the only one in the case, the jurisdiction of the court would no doubt have been sustained. The order made herein was sufficient in form. It needed no amendment, yet the court in furtherance of justice had the power to amend it; the petition being in accordance with the statute conferred power on the court to act.

“ The other cases relied on as authorities against the validity of the order have no application. They relate to the following subjects: The People v. Hulburt, 46 N. Y., 110, to the authority of taxpayers of towns ; Battell v. Torrey, 65 id., 294, to infants’ estates; In re Valentine, 72 id., 184, to lunatics’ estates, and Stilwell v. Swarthout, 81 id., 109, to administrators’ sales. The objection to the jurisdiction being untenable must be overruled. As to the perpetual stay, the application will be denied as to the Eggerts, whose rights became vested before the order herein1 was made. As to the Wahligs, the application must be granted. Their proceedings were instituted after the order was granted and after the receiver acquired title, which relates back to the time the order was signed. The second, third and four branches of the application are in the interest and for the benefit of all concerned and will be granted.

“ Settle order on notice.”  