Sorrentino v. Giletti — 78 N.Y.S. 322

Majority

p. 322

(75 App. Div. 507.)

SORRENTINO et al. v. GILETTI et al.

(Supreme Court, Appellate Division, First Department.

November 7, 1902.)

Headnote

1. Corporations — Officers—Election.

Where, on application by petitioners to have themselves declared the lawfully elected trustees of an incorporated society, it appeared on undisputed testimony, as to one, that he had resigned, and that the society had accepted his resignation, it was error to declare him a trustee.

2. Same — Eligibility—Resolutions.

A resolution, adopted by a corporation, that only citizens should be eligible to the position of trustee, not incorporated in the by-laws, was revocable at any time, and others than citizens might be elected notwithstanding the resolution.

Appeal from special term, New York county.

Application by Rocco Sorrentino and others to have themselves declared the lawfully elected trustees of a corporation, and the election of Stanislao Giletti and others declared null and void. From- an order granting the application, and an order refusing a reargument, said Giletti and others appeal.

Modified.

Argued before VAN BRUNT, P. J., and HATCH, McLAUGHLIN, O’BRIEN, and INGRAHAM, JJ.

John Palmieri, for appellants.

Antonio C. Astarita, for respondents.

It would appear from the undisputed testimony that the relator Galuori resigned as trustee, and that his resignation was accepted by the corporation. In view of such resignation, I do not think the court was justified in declaring that he was a trustee for the year 1902. As to the other relators, however, I think they were legally elected. The resolution that only citizens should be eligible to the position of trustees was, if adopted at all, a resolution of the society which it could revoke at any time. It does not appear that any by-law of the corporation fixing citizenship as a qualification for a trustee was adopted. Subsequently, when the society elected these relators trustees, it had the right to elect anybody eligible under the law, notwithstanding that a resolution had been passed that it would not elect as trustee any member who was not a citizen of the United States. The election, therefore, was valid, and the persons

p. 323

elected became trustees of the corporation. There was no acquiescence or laches that would prevent the legally elected trustees from insisting upon performing the duties of the office. This was not a case where there was a void or illegal election, and where the court should order a new election, but where certain trustees were lawfully elected, and are entitled to perform the duties of the office.

The order appealed from should be modified by denying the application as to Galuori, and, as to the other relators, affirmed, without costs of this appeal. All concur.