Delaware Valley Telephone Co. v. Tiffany — 131 A.D. 343

Majority

p. 343

The Delaware Valley Telephone Company, Appellant, v. Elmer C. Tiffany, Respondent.

Third Department,

March 10, 1909.

Headnote

Corporation—by-laws—right to levy assessment.

Under a by-law of a corporation which provides that “when there are not sufficient funds in the treasurer’s hands to pay the indebtedness of the corporation an assessment shall be made on the stockholders to cover the amount necessary to cancel said indebtedness, unless otherwise arranged and paid by the board of directors,” an assessment for the estimated expenses for the current year is authorized. That a portion of the year had expired prior to such assessment is immaterial, it not appearing that the amount thereof is required to pay indebtedness then due above the amount of the moneys on hand.

Appeal by the plaintiff, The Delaware Valley Telephone Company, from a judgment of the County Court of Broome county in favor of the defendant, entered in the office of the clerk of said county on the 5th day of June, 1908, upon an order of said County Court reversing a judgment of a justice of the peace.

C. T. Alverson and E. D. Cumming, for the appellant.

C. E. Scott, for the respondent.

The action is brought to recover an assessment made by the plaintiff in May, 1905, against the defendant as one of the stockholders of the plaintiff. . The assessment is made pursuant to one of the by-laws of the plaintiff company, which provides as. follows: “ When there are not sufficient funds in the Treasurer’s hands to pay the indebtedness of the corporation an assessment shall be made

p. 344

on the stockholders to cover the amount necessary to cancel said indebtedness, unless otherwise arranged and paid by the board of directors.” This by-daw authorizes an assessment only when there are not sufficient funds in the treasurer’s hands to pay the- indebtedness of the corporation and then only authorizes an assessment for a sufficient amount to cancel the indebtedness. The proof on the trial was to the effect that the assessment was made not for the purpose of paying an indebtedness of the company over and above the funds on band, but was to pay the estimates of the expenses for conducting the company for the current year. The fact that a portion of the year had expired before the assessment was made makes no difference so long as it did not affirmatively appear that the amount of the assessment was required to pay for indebtedness then due above the moneys on hand. For this reason alone the learned County Court was correct in reversing the judgment of the justice of the peace.

The judgment should be affirmed, with costs.

All concurred. •' -

Judgment unanimously affirmed, with costs.