
    Utica Trust and Deposit Company, Plaintiff, v. Charles C. Kellogg & Sons Company, Defendant.
    Fourth Department,
    May 6, 1908..
    Corporation — dividends on preferred stock.
    Where a corporation having outstanding preferred stock bearing interest at six per cent “payable semi-annually, cumulative,” issues on October 1,1906, new preferred stock with a similar provision as to interest, a dividend made January 11, 1907, properly makes the rate at three per cent on the former issue and but one and one-half per cent on the new issue.
    A corporation and its stockholders may agree as they please as to the rights and privileges of preferred stockholders.
    
      Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure.
    
      C. A. Miller, for the plaintiff.
    
      Francis K. Kernan, for the defendant.
   Williams, J.:

Judgment should be ordered for the defendant.

The controversy relates to the amount of dividends to which the plaintiff was entitled upon preferred stock held by it in the defendant corporation. The parties are both domestic, the plaintiff having been organized under the Banking Law, and the defendant under the Business Corporations Law. The defendant’s stock June 13, 1901, was duly classified as common and preferred. The latter was to bear six per cent interest, payable semi-annually, cumulative. October 1, 1906, the defendant duly issued a lot of new preferred stock with the same provision as to interest, etc., as the old preferred. Under an agreement with defendant, plaintiff took a quantity of this new stock, receiving it about the date of its issue. January 11, 1907, the defendant declared a dividend of three per cent on all the outstanding preferred stock issued prior to July 1, 1906, but of one and one-half per cent only on that issued October 1, 1906. Plaintiff then held $37,600 of the preferred stock, and claims it was entitled to three per cent thereon. It received the one and one-half per cent under protest, and seeks now to recover the additional one and one-half per cent, amounting to $564 and interest from the 15th of January, 1907, when the dividend was payable.

This statement contains in brief the facts necessary to be considered in determining the controversy.

Defendant’s claim is that it was permitted to pay interest by way of dividend upon the stock only from the date of its issue, while plaintiff claims the date of the issue of the stock was immaterial. Holding the stock when the dividend was declared, it was entitled to share therein with the other stock of the same kind whenever issued.

The parties agree that a corporation may make such an agreement with its stockholders as they please with reference to the rights and privileges of preferred stockholders, and that in this case a specific agreement was so made, but they disagree as to what that agreement ^WB-Se

The parties agree that the new preferred stock was to have the same rights, etc., as the old. The plaintiff says this would entitle it to the same per cent of dividend in January, 1907. The defendant says it would entitle it, not to the samq per cent of dividend, but to the same rate of interest, and the old was thus entitled to six months’ interest, the new to only three months. To give the new stock three per cent dividend would be to pay them twelve per cent interest instead of six per cent paid on the old stock. Thus we have the contentions of the parties clearly stated.

There can be no doubt of the right to make the agreement, whether its construction be upon plaintiff’s or defendant’s theory. (Roberts v. Roberts-Wicks Co., 184 N. Y. 257, and cases therein referred to.)

In stating the privileges to which the preferred stock was entitled^ the word “ dividend ” is not used. The language is, “ to bear interest at the rate of six per centum per annum, payable semi-annually, cumulative.”

From this language it would seem quite clear that the dividends when declared would be only of interest earned, and in order to be made equal with the old stock it should in January, 1907, have been paid interest only from October 1, and not from July 1,1906.

It is difficult to make any extended suggestions upon this subject. It is a question what the parties intended by their contract. They could make it the one way or the other. There was no legal objection to their doing so.

I am of the opinion the defendant’s construction of the agreement is the proper one.

All concurred.

Judgment ordered for the defendant upon the submission, without costs. 
      
       See Laws of 1892, chap. 689, as amd.— [Rep.
     
      
      See Laws of 1890, chap. 567, as amd. by Laws of 1892, chap. 691, and subsequent statutes.— [Rep.
     