
    In the Matter of the Voluntary Dissolution of Geneva Basket Company, a Corporation.
    (Supreme Court, Monroe Special Term,
    March, 1911.)
    Corporations — Dissolution of corporation — Proceedings for voluntary dissolution — Notice to Attorney-General.
    Motions and orders — Orders to show cause—When returnable; Affidavits as ground for granting order—Verified petition as affidavit, An order to show- cause is equivalent to a notice of motion and a motion may be brought on by such an order though not returnable in less than eight days.
    No notice to the Attorney-General is required of an application for an order to show cause why a petition for the voluntary dissolution of a corporation should not be granted.
    A verified petition is an affidavit within the meaning of the Code of Civil Procedure and an order to shew - cause may be granted thereon.
    Petition by Michael J. Money, a stockholder and director of Geneva Basket Company, a corporation, for its voluntary dissolution pursuant to statute, and motion to vacate a petition and order for similar relief made on January 9, 1911, on application of John B. Kenny.
    
      E. A. Griffith, for petitioner.
    P. H. Leahy, for John B. Kenny, a stockholder and director, opposed.
   Foote, J.

On January 9, 1911, this court made an order on the petition of John B. Kenny, a director of the Geneva Basket Company, a corporation, directing all persons interested to show cause before a referee named in the order why said corporation should not be dissolved. Ro notice of the application for this order was given to the Attorney-General as required' by statute. On the return day of the order to show cause the proceeding was adjourned to February 14, 1911; and on February 13, 1911, the present petitioner, Michael J. Manev, also a stockholder and director, procured from a justice of this court an order to show cause at this term, based on his petition, why the petition of said Kenny should not be dismissed and the order to show cause based thereon vacated, on the ground that no notice of the application for said order to show cause had been given to the Attorney-General; also why the prayer of his petition for a voluntary dissolution should not be granted. A copy of this petition and order to show cause, with a copy of the proposed order to be applied for,. was served upon the Attorney-General and upon said Kenny more than eight days before the beginning of the present term. Counsel for said Kenny concedes that-all proceedings on his prior petition are mi)1 and void for failure to give notice of the application to the Attorney-General as the statute requires-, but he objects that Maney’s petition and motion cannot be granted because the application is upon order to show cause returnable in more than eight days, and that it was based upon a petition instead of an affidavit; also that no notice of the application for the order to show cause was given to the Attorney-General.

These objections are not, in my opinion, well taken.

That an order to show -cause need not be made returnable in less than eight days is held in Matter of Ferris, 37 Misc. Rep. 606. where Judge Gaynor reviews the cases relied upon by counsel here, and holds that, since the amendment of Rule 37 in 1887, there is no rule or statute which prevents the bringing on of a motion by order to show cause returnable in more than eight days. I find no authority to the contrary.

The order to show cause is equivalent to a notice of motion, and no notice to the Attorney-General of application for the order to show cause is required. Greason v. Goodwillie-Wyman Co., 38 Hun, 138.

The petition is an affidavit. Code Civ. Pro., § 3343, subd. 11.

I find no valid objection to the petitioner’s papers.

Counsel for said Kenny, relying upon the sufficiency of his objection to the papers of his adversary, submits a new petition by his client for voluntary dissolution, with proof of service upon the Attorney-General, intending that it shall be acted upon at this term in case the application of the petitioner Haney is denied; but, as above stated, I see no reason for denying Haney’s petition and, as his proceedings seem to be regular, his application must take precedence and the petition now presented by Kenny must be dismissed.

Petitioner Haney is entitled to an order dismissing Kenny’s first petition and vacating the order to show cause based thereon, and granting, upon Haney’s present petition, an order in the form of the proposed order attached to his petition, a copy of which was served upon the Attorney-General.

Ho costs are allowed to either party.

Ordered accordingly.  