In re Norton

On the petitioner’s application, the court at Special Term devolved upon a referee the power of visitation to be exercised under section 16 of the Membership Corporations Law (Laws 1909, c. 40), with certain conclusions as to the respective rights in this property and in the income from sales of cemetery lots. The cemetery society has appealed from each and every part of this order.

Will an appeal lie from such an order, which is not final? The power of visitation over a corporation originally was administrative, and not judicial. Eleemosynary and secular corporations, like hospitals and colleges, with any abuses of administration, could be visited, reformed, redressed, and amended by the king himself. In putting forth these corrective powers, the chancellor acted for the crown, and not as a court. Thus Kent, C., said:

“In. respect to charitable institutions, the chancellor exercises the power oí visitation, as the personal representative of the crown. It appertains to the person who holds the great seal, rather than to the Court of Chancery, as a court of equity jurisdiction. Ex parte Dann, 9 Vesey, 547. It may be exercised by a commission issued under the great seal.” Attorney General v. Utica Insurance Co. (1817) 2 Johns. Ch. 371 , 388.

Although this visitation of corporations may have been derived from that supervision long familiar in the ecclesiastical law, the powers of a visitor under the two systems became very different in their exercise. An ecclesiastical visitor was considered as a quasi court, so that appeals might be taken from his decisions. 2 Phill. Eccl. Law, p. 1046. But the determination of a visitor as to a hospital, college, or charitable corporation was definitive, as no appeal lay to the king or elsewhere. Comyns’ Dig. art. “Visitor,” B; 2 Kent, Com. *302. At the present time in England such a visitor, instead of a court, is rather an arbitrator, acting under certain directions, and his decision on matters within his jurisdiction is final, and not subject to court review. Even the visitor himself cannot relieve against his own sentence. Halsbury, Laws of England, vol. 4, p. 288.

In this country, visitation is by the government itself, through the medium of the courts. 2 Kent, Com. 240. The New York statute of 1848, to incorporate benevolent, charitable, scientific, and missionary societies, declares all institutions so formed subject to visitation and inspection of the Justices of the Supreme Court, or by any person appointed by the court for that purpose. Laws 1848, c. 319, § 8. Such visitation was also conferred in other acts for the formation of special kinds of corporations.- Laws 1865, c. 368, § 8; Laws 1875, c. 267, §9; Id. c. 343, § 7; Laws 1888, c. 293, § 6. None of these acts gave any right of appeal, so that here, as in England, the sentence of a visitor in the course of his oversight of such a corporation was final. But in 1895 the commissioners of statutory revision, merging these dispersed acts into the Membership Corporations Law (chapter 43 of the General Laws), included institutions not strictly charitable. Visitation was provided by section 16. Upon an account directed to be taken before a referee, the court, after hearing, is to enter a final order determining whether the corporate funds have been misappropriated, from which final order any party aggrieved might appeal to the General Term of the Supreme Court and to the Court of Appeals. Laws 1895,

The revisers said their purpose was a “speedy and inexpensive judicial investigation.” Rep. Com. Stat. Revision 1895, Mem. Corp. Law, p. 18. This salutary object might be lost if successive appeals were to lie from the order naming a visitor, or from other orders intermediate the application and the final order. An object of visitation often is to ascertain the corporate property by an inventory, checked and sifted by the visitor’s research and probe into the corporate acts (although that is not the special relief here sought), which result might be so obstructed as to be without practical avail if those inside the corporation could hold off the visitor by taking suspensive appeals. In accordance with its purpose to let in light, correct abuses, and ascertain a corporation’s true condition, the remedy by visitation has been always summary and not admitting of obstructive procedure. The revisers had this in mind, and, even without their expressed words, would be presumed to have preserved the original force of such a protective measure.. By granting an appeal from the final order, they surely did not, against their aim and purpose, let in the whole series of intermediate appeals, by which the very thing they sought could be made of little or no avail. Matter of the Commissioner of Public Works, 111 App. Div. 285 , 97 N. Y. Supp. 503 , affirmed 185 N. Y. 391 , 78 N. E. 146 ; Code of Civil Procedure, § 1361. While the Appellate Division of the First Department modified an intermediate order for visitation by striking out an injunction as not a legitimate part of such a remedy (Matter of Greene, 153 App. Div. 8 , 138 N. Y. Supp. 95 ), that review did not discuss the question of the appealability of such an interlocutory visitation order, which point does not appear to have been there raised.

The appeal .is therefore dismissed, with $10 costs and disbursements. All concur.

The parties hereto having stipulated in open court that a justice may be substituted in place of BURR, J., deceased, Mr. Justice STAPLE-TON was so substituted.