
    In the Matter of the Application of William Borea, Appellant, for the Appointment of Appraisers to Appraise the Value of Stock of the Locust Court Apartments, Inc., Respondent, Held by the Petitioner.
    Second Department,
    February 8, 1932.
    
      Harry A. Goidel, for the appellant.
    
      Albert Ritchie, for the respondent.
   Per Curiam.

Regardless of the recitals in the certificate or incorporation, the exchange of the vacant lots for stock in othef corporations (doubtless the creation of the officers and majority stockholders of respondent) was not a transaction in the ordinary course of business the respondent had undertaken in building and managing an apartment house. Its complete plan, if carried out as intended, contemplated the transfer of all its property except the apartment house, together with all its stock, to another corporation, which would then possess, either by direct or by full stock ownership, all the property formerly owned by respondent. This was “ an act of self-destruction ” (Matter of Timmis, 200 N. Y. 177, 181) and will so change the character of the business that the right of petitioner for appraisal is established. (Stock Corp. Law, § 21; Matter of Fulton, 257 N. Y. 487, 492.) The respondent has divested itself of all property (or will become divested), and the owners of its shares are practically compelled to exchange their shares for those in the new corporation. While it is doubtful if the shares held by petitioner are of any substantial value, as a non-consenting stockholder he has the right to decide between exchange and appraisal. (Matter of Silberkraus, 250 N. Y. 242, 246.)

The order should be reversed on the law and the facts, with ten dollars costs and disbursements, the motion granted, with ten dollars costs, and the matter remitted to the Special Term to appoint appraisers and fix the time and place of their first meeting.

Sctjdder, Tompkins and Davis, JJ., concur; Lazansky, P. J., and Kapper, J., dissent and vote to affirm.

Order denying motion for appointment of appraisers and dismissing the proceedings reversed on the law and the facts, with ten dollars costs and disbursements, the motion granted, with ten dollars costs, and the matter remitted to the Special Term to appoint appraisers and fix the time and place of their first meeting.  