
    The People of the State of New York, Respondent, v. Mercantile Co-operative Bank, Appellant.
    
      Co-operative banking corporations — the Attorney- General must bring an action to dissolve them on receiving a report from, the Superintendent of Banks — a relator is unnecessary —-when solvency produced by scaling down the amount due to shareholders is not a bar to such an action.
    
    Section 18 of the Banking Law (Laws of 1892, chap. 689), providing that if it shall appear to the Superintendent of Banks that any of the corporations mentioned in that section are conducting business in an unsafe or unauthorized manner, or that it is unsafe and inexpedient for such a corporation to continue in business, he shall report the facts to the Attorney General, who shall thereupon institute such proceedings against the corporation as are authorized in the case of insolvent corporations, or such other proceedings as the nature of the case may require, applies to co-operative banking corporations organized under chapter 122 of the Laws of 1851, which corporations were made subject to the provisions of the Banking Law by sections 1 and 2 of that law.
    The duty of the Attorney-General to bring the action upon receiving the report of the Superintendent of Banks is absolute and not discretionary. He may bring an action to dissolve the corporation under sections 1785 and 1786 of the Code of Civil Procedure, relating to insolvent corporations, in the name of the People of the State of Mew York, without waiting for a relator to set him in motion.
    
      It seems, that the corporation cannot, by scaling down the amount due to its shareholders, make good a deficit in its assets caused, not only by an extravagant estimate of the value of its property, but by the reckless purchase of real estate for the profit of some of its directors and by the mismanagement of the affairs of the corporation by such directors.
    Appeal by the defendant, the Mercantile Co-operative Bank, from an order of the Supreme Court, made at the Orange Special Term and entered in the office of the clerk of the county of Kings on the 11th day of December, 1899, as resettled by an order entered in said clerk’s office on the 20th day of March, 1900, appointing temporary receivers of all the property and effects of the defendant.
    This appeal was transferred from the second department to the first department.
    
      William, JRa/nd, Jr., for the appellant.
    
      W. ,E- Kisselburgh, Jr., for the respondent.
   Rumsby, J.:

The defendant is a corporation organized on the 9th of October, 1889, under the authority of chapter 122 of the Laws of 1851. Its business operations extend not only through the State of New York, but several other of the United States, and the nominal amount of its transactions is very large. By the General Banking Law (Laws of 1892, chap. 689) chapter 122 of the Laws of 1851 was repealed, and all corporations which had been organized under the provisions of that law were made subject to the provisions of the Banking Law, and were placed for certain purposes under the supervision of the Superintendent of Banks. (General Banking Law, §§ 1, 2.) In the month of May, 1899, the Superintendent of Banks began an investigation into the affairs of this corporation. The investigation continued some time, and its result was made to appear in the report of the examiner, which was filed in the office of the State Banking Department on the 23d of September, 1899, and in the official report of the Superintendent of Banks made to the Attorney-General, both of which are by the Banking Law made presumptive evidence of the facts stated in them in all proceedings of this character. (General Banking Law, § 24.) By the report of the examiner it appeared that there was an actual deficit in the assets of the company amounting to $296,536.78. The report of the superintendent to the Attorney-General discloses the manner in which the business of the corporation had been transacted, from which the superintendent inferred that it was unsafe and inexpedient for the association to further continue in business, and he reported to the Attorney-General that conclusion. In pursuance of that report this action was brought, and upon a hearing at a Special Term in the second judicial district the order appointing the temporary receiver was made. An appeal was taken to the Appellate Division of the second department, but it having been found that two of the justices then members of that court had taken part in the making of the order, the matter was transferred to this department for determination.

The appellant insists as its first objection to this order that the Attorney-General has no power to bring this action, or in any event lie has no authority to bring it without a relator. By section 18 of the General Banking Law it is provided that if it shall appear to the Superintendent of Banks that any of the corporations mentioned in that section are conducting business in an unsafe or unauthorized manner, or that it is unsafe and inexpedient for such a corporation to longer continue in business, he shall report the facts to the Attorney-General, who shall thereupon institute such proceedings against the corporation as are authorized in the case of insolvent corporations, or such other proceedings as the nature of the cáse' may require. The corporations referred to in section 18 are corporations which are subject to the general provisions of the act. (§ 17.) Issue is taken by the defendant with the conclusion that the corporation is insolvent, and with the determination of the superintendent that it was unsafe and inexpedient for it to continue business. It is said that the corporation is not insolvent. The facts with respect to this matter are that upon an examination made in October, 1898, .it was made to appear that the assets of the corporation amounted to $1,021,589, and its liabilities to $1,017,871.39, so that upon the books of the company it was solvent. Another examination, made in May, 1899, which lies at the foundation of this action, resulted in the conclusion by the examiner that the assets had been altogether too highly estimated, and as a result of a reassess-. ment it was found that the assets were nearly $300,000 less than the liabilities. Among the liabilities of the corporation, however, it appeared that there was due to the shareholders $593,724.17. This was the sum to which they had become entitled because of their interest in the profits of the association and which had been credited to them on the books up to that time. When it appeared from the report of the examiner that there was a deficit of something over $296,000, the directors undertook to make it good by scaling down $300,000 of the amount due the shareholders : and in that way the assets of the company, instead of being $296,000 less, were changed to become something over $3,000 more than the liabilities.

The defendant claims that this scaling down was within the authority of the officers of the corporation within the case of People v. Bankers’ Loan & Investment Co. (13 Misc. Rep. 221), and that when it had been done the solvency of the corporation was restored. It appeared in that case that the loss Sought to be made good by reducing the amount to be paid to the shareholders was the result of a depreciation in the value of property out of the State upon which loans had been made by the corporation. It can hardly be said that was the cause of the loss here; but it is fairly to be inferred that the losses of this corporation, resulting in this great deficit, were caused not only by the extravagant estimate made as to the value of its property, but by the reckless purchase of real estate for the profit of some of the directors themselves and by the mismanagement of the affairs of the company by. these directors. If that be so, the case is more within that of People v. Empire Loan c& Investment Co. (15 App. Div. 69), in which it was held that losses caused in that way could not be restored by scaling down the sums due to the members and so re-establishing the solvency of the corporation without the consent of those members.

But it is unnecessary to determine in this case whether the solvency of the corporation was restored by the act of the directors in reducing the amounts to which the members were entitled, because it is quite clear from the report of the superintendent to the Attorney-General that the manner of conducting the business was such that it was unsafe and inexpedient to permit the corporation to longer continue in business, and that, therefore, the condition existed which required the Attorney-General, under section 18 of the Banking Law, to take such steps as are authorized to he taken against insolvent corporations. This proceeding is provided for in sections 1785 and 1786 of the Code of Civil Procedure. By the former section, when a corporation is insolvent, an action may he brought to procure a judgment dissolving it, and by section 1786 this action is to be brought by the Attorney-General in the name and on the behalf of the People. It is not left to the discretion of the Attorney-General whether he shall bring the action or not, but by section 1808 it is made the absolute duty of the Attorney-General, when the conditions exist, to cause it to be begun, or, as the section says, he must bring an action accordingly.” When the Superintendent of Banks has reported to the Attorney-General that, in his judgment, it is unsafe and inexpedient for any corporation within his jurisdiction to longer continue in business, it is made the absolute duty of the Attorney-General to bring an action to dissolve it in such a proceeding as is prescribed by sections 1785 and 1786 of the Code of Civil Procedure. As the duty to bring the action is absolute, it follows that he cannot be compelled to wait until some one has seen fit, in the capacity of a relator, to make a complaint to him to set him in motion. Such is the necessary result of the provisions of the statute. There are no cases which construe the law otherwise.. In the case of People v. Lowe (117 N. Y. 175) the Court of Appeals refused to pass upon the question whether it was necessary that there should be a relator in an action to dissolve a corporation, organized under the law of 1851, brought by the Attorney-General. In the case of People v. Ballard (134 N. Y. 269), however, it was expressly held that a relator was not necessary in such an action, and such, it seems, must be the necessary result of the statute.

This conclusion also substantially disposes of the second ground urged' by the appellant, that the case does not come within the provisions of paragraph 4 of section 1785 of the Code. It is not necessary that it should. Section 1785 is referred to, not as the source of the power of the Attorney-General to bring this action, but as prescribing the action which must be brought when the necessary facts required by section 18 of the Banking Law appear. The result of the two statutes is as though there had been added to section 1785 a new subdivision prescribing that an action to dissolve a corporation should be brought- whenever it should appear to the Superintendent of Banks that it was unsafe and inexpedient for a corporation to which the Banking Law was applicable to continue in business, and he should communicate the facts to the Attorney-General. But the appellant insists that the order appointing the receivers in this case should not have been made, because its necessary effect will be an enormous depreciation of the remaining assets of the corporation. We are not able to see the force of this objection. Whatever the assets of the corporation are worth, they certainly will not be Jess because they are placed in the hands of some one whose duty it is to administer and dispose of them among the people entitled to receive them. As the business of the company stood, it is quite clear that it was being conducted at an enormous expense, in an unbusinesslike way and without due regard to the rights and interests of the persons entitled to share in the profits, and there was every reason why the business conducted in this manner should be brought to an end. There is to be considered in such cases not only the rights of the outside creditors, so called, but the rights of the large number of people who have been induced by their belief in the honesty of the officers of the corporation to put their money into it in the expectation of making profits, and when it aj>pears that-the management of the company is such that it is necessary to take away one-half of those profits to make good the claims of the outside creditors, it would seem that the purposes for which the corporation was organized have failed. Such corporations are not organized solely to pay large salaries to their officers and to enable them to speculate on their own account, but for the purpose of permitting small subscribers to invest safely the money which they have saved; and when it appears that the corporation fails in the very purpose for which it was organized, it certainly seems that steps should be taken by the Attorney-General to bring it to an end. It was not only within the power of the Attorney-General, but it was his duty, to bring this proceeding, and the order should be affirmed, with costs to the respondents.

Van Brunt, P. J., Patterson, O’Brien and Hatch, JJ., concurred.

Order affirmed, with costs.  