Haight v. Dickerman — 45 N.Y. St. Rep. 128

Majority

p. 128

Frederick A. Haight, App’lt, v. Watson B. Dickerman, Resp’t.

(Supreme Court, General Term, First Department,

Filed March 31, 1892.)

Headnote

New York stock - exchange —Rights ok creditors on sale ok seat ok MEMBER.

Where the seat of a member of the New York Stock Exchange is not ■sold upon his suspension, but his time for settlement is extended by the governing committee from time to time until his death, when the member.ship is sold, the rights of creditors become vested as of the time of such sale, and are to be adjusted in accordance with the provisions of the constitution relating to the distribution of the proceeds of a sale afttr the death of a member as they are at that time, and not as they were at the time of his suspension.

Appeal from an order vacating a preliminary injunction, jEdward C. Perkins, for app’lt; Leiois Cass Ledyard, for resp’t.

The plaintiff, who was a member of the New York Stock Exchange, and a creditor'of one William K. Soutter, who was also a member of the exchange, brought this suit to ■compel an accounting by the exchange of the proceeds of the •sale of Soutter’s seat, and a distribution thereof among those of his creditors who are also members of the exchange, and to restrain it from making a distribution among the other creditors of that class, to the exclusion of the plaintiff.

The preliminary injunction which was obtained was vacated by the order from which this appeal is taken, upon the ground that defendant’s right to throw out the plaintiff’s claim against Soutter, and direct a distribution among the other creditors, who are members of the exchange, was pursuant to authority vested in the committee on admissions under certain provisions of the constitution of the exchange.

We do not understand that any real contention is made as to the force and effect of provisions in the constitution upon the rights of members. If such existed, it has been settled' by the ■case of White v. Brownell, 8 Abb. Pr., N. S., 318, and 'by the other cases referred to in the opinion of Mr. Justice Lawrence. Jn the case cited, of White v. Brownell, wherein the nature of an

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.association such as the Stock Exchange was considered, it was .said: “As this association is not organized in-pursuance of any statute, nor are the terms of membership fixed by the principle ■of the common law, it follows that the agreement which the members make among themselves on the subject must establish and determine the rights of the parties on the subject. The constitution of the association and its laws, agreed upon by the members, ■contain all the stipulations of the parties, and form the law which should govern.” The contention, therefore, relates rather to the facts which have been made to appear by the complaint and corroborative affidavit made by the plaintiff, and upon the answer •and affidavit of the secretary of the exchange.

Were the facts such as contended for by the plaintiff, that under the power vested in the exchange, it had upon the suspension of Soutter sold the seat, then unquestionably, the rights of the plaintiff having become fixed and vested should be governed by the then existing provisions of the constitution of the exchange respecting the rights of members who were creditors in and to "the proceeds of a seat sold belonging to a member who had been ■suspended. It has been made to appear, however, that although the exchange suspended Soutter, that his seat was not thereupon .sold, but, on the contrary, he continued to be a suspended member of the exchange for some years thereafter and until his death.

If by the rules of the exchange it became the duty immediately upon the suspension of a member to sell his seat and distribute the proceeds, then the contention of the plaintiff would again be •sound as to the rights of the plaintiff having become fixed and vested upon such failure and suspension. It will be seen, however, by a reference to § 4 of article 14, relating to suspended members, etc., that, “ The governing committee may, by a vote of two-thirds of the members present, extend the time of settlement for periods not to exceed one year. If, however, after the expiration of the time granted, said suspended member shall not make application for a further extension of time, or if making ■•such application, the same shall be refused, his membership shall be disposed of as provided in the first part of this section.” " The governing committee, therefore, had the right to extend the time of settlement for periods not to exceed one year, and were not ■obliged by any provision of the constitution to sell the seat of the member immediately upon his insolvency or suspension.

It thus appears that in the exercise of such right, that the periods were extended and 'the seat not sold until his death, which occurred in 1891. Subsequent thereto the membership was sold and the creditors, including the plaintiff, were summoned and appeared and presented to the committee of the exchange their claims. The committee thereafter proceeded to pass upon the same, allowing some and disallowing others, among the latter being the claim of plaintiff.

Section 4 of article 13 of the constitution provides‘‘when a member dies, his membership may be disposed of by the committee on admissions; and after paying the claims of the mem

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bers of the exchange, as allowed by said committee on admissions,., it shall pay any balance to the legal representatives of the deceased.” •

It being apparent that the exchange did not exercise its right, to sell the membership on account of the suspension, but having-allowed that to continue until death, when the membership was. sold, that the rights of the parties were fixed and determined in. the proceeds of the sale when made, which was after the death of Soutter, and that the rights of creditors in respect thereto were to be adjusted in accordance with the provisions of the constitution relating to the distribution of the proceeds of the sale after the death .of a member.

Upon the facts therefore, and the law applicable thereto, we think that the injunction was properly vacated, and that the order appealed from should be affirmed, with costs.

Yan Brunt, P. J., concurs.