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Krakowski v. North New York Co-operative Building & Loan Ass'n

24 N.Y.S. 1138 Court N.Y.C.P. Decision date 1893-08-09 English

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p. 1138
KRAKOWSKI v. NORTH NEW YORK CO-OPERATIVE BLDG. & LOAN ASS’N.
(Common Pleas of New York City and County, General Term.
August 9, 1893.)

Headnote

Appeal—Peiikkctino Iuíhuv ■ r v if.
Where both parties to an appeal base their rights on certain provisions of defendant corporation’s articles of association, which appear to have been received in evidence on the trial, but not returned, the return should be perfected, and a rehearing allowed.
Appeal from tenth district court.
Action by Emil Krakowski against the North New York Co-operative Building & Loan Association to recover, on withdrawal by plaintiff from defendant, the amount paid on shares issued to him, less all fines and a ratable proportion of losses, pursuant to the provision of the alleged articles- of association of defendant. From a judgment for plaintiff, defendant appeals.
Rehearing directed.
Argued before BISCHOFF and GLEGERICH, JJ.
James C. De La Mare, for appellant.
Fred. 0. Leubuscher, for respondent.

Both parties to this appeal base their claims upon certain provisions of defendant’s alleged articles of association, of which the justice’s return, in its present condition, presents no evidence. The. trial minutes show that certain so-called bylaws were offered and received in evidence, and marked “Deft’s Exh. A;” but this exhibit does not accompany the return, and we are thus left to conjecture respecting its contents. Plaintiff’s Exhibit 10 seems to be confined to certain pages bearing written entries,

p. 1139
and contained in a book entitled “Articles of Association of the North New York Building and Loan Association,” and we cannot, therefore, consider the book for other purposes. Again, the corresponding provisions of the so-called articles of association, as they appear in the book referred to, are essentially different from those which are set out at length in appellant’s counsel’s brief, yet the latter may be in harmony with defendant’s Exhibit A, now omitted, and to which counsel refers. We think that, for the matter above alluded to, justice requires that the parties have opportunity to perfect the return, and we direct that this appeal be reheard at the next November general term, any amendment of the return on this appeal to be made meanwhile.