In re Townshend — 46 N.Y. St. Rep. 135

Majority

p. 135

In the Matter of John Townshend et al.

(Supreme Court, General Term, First Department,

Filed May 13, 1892.)

Headnote

1. Cobpokations—Elections—Proxies.

Where proxies to vote ata corporate election are regular inform, except that the day of the month is left blank because at the time of signing the precise date of the election had not been fixed, they are sufficient in form to entitle their holder to vote.

% Same—New election.

Where it appears that the refusal by the inspectors to accept such proxies and permit the holders to vote has changed the result of the election, a new election may properly be ordered pursuant to chap. 663, Laws 1890.

3. Same—Res adjudicata.

A denial of a former application for such an order is not res adjudicata, where the facts were not fully presented to the court on such application, and the parties are not the same as on the present application.

Appeal from order setting aside an election of directors of the United States Cremation Company, Limited, and ordering a new election of directors of said company.

C. T. Haviland, for app’lt; C. A. Hart, for resp’t.

We think that the learned court at special term was entirely correct in holding that the proxies which were rejected by the inspectors of election were sufficient in form to entitle their holders to vote.

The only blank which appeared in the proxies was as to the day of the month. The month itself and the year were specified; also the hours between which the election was to take placa The election itself was also referred to as “ a new election of directors by the stockholders of the United States Cremation Company, Limited,” a phrase which was in precise accordance with the call for the election.

The intention of the stockholders who signed such proxies was, therefore, unmistakable. They referred to the particular election in question, and they clearly intended to confer upon the persons specified in such proxies the right to vote for them at such particular election. They could not at the time they signed

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the proxies have specified the day of the month, for the reason that the day of the month had not then been fixed by the board of directors. But the fact that such an election was to take place in the month of June was understood, and the proxies were drawn with direct reference to such forthcoming election.

We think that the persons to whom such proxies were delivered were even authorized, under the circumstances, to fill in the blank with regard to the day of the month, and that they might have done so at the moment when they tendered these proxies to the inspectors and claimed the right to vote thereon.

As it appears that the refusal to accept these proxies, and to permit the Holders thereof to vote thereon, changed the result of the election, we think that the special term was right in directing a new election to be held.

The only other important question presented by the appellant is, whether the court is powerless to grant this relief because of the denial of a previous application for similar relief. The appellant claims that by reason of such denial the question with regard to these proxies was adjudicated adversely to the view taken by the special term on the present application.

It appears, however, that the previous application was made by but two stockholders, named Dreher and Zimmerman, who simply alleged in their petition that proxies for 200 shares of the stock of the (company were rejected by the inspectors at such election “because the date of meeting was omitted therefrom.” This petition was supported by the affidavit of one Berendsohn, who stated that “ proxies for 200 shares were not counted for the reason that said proxies did not contain the date of said meeting.” These were the only facts with regard to the proxies in question before the court on such previous application; no proof upon the-part of the defendants upon that point. Upon such facts the court held, and properly, that such proxies were invalid for the reason that they did not appear to have reference to any particular election.

For aught that appeared in such papers, neither the day of the month, nor the year, nor the character of the election, was specified. The ruling of the court was therefore in the nature of a dismissal of the complaint in an ordinary action for lack of proof. The ruling in substance was that on the facts presented by applicant, 'the election could not be set aside. On the present application, however, the form of the proxies was before the court, and the intent of the stockholders who signed such proxies was made manifest by proper and competent proof.

It also appeared on the present application beyond question that the rejection of the vote under these proxies changed the result.

But it is quite clear, apart from all other questions, that the order made on the previous application was not res adjudicóla as to one at least of the present applicants, Albert Blumenthal, for the reason that he was not served with the papers, nor did he appear. He is one of the stockholders of. the company, and as such He has a right to avail himself of the provision of tfie statute which con

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fers upon the court jurisdiction to order a new election, and he cannot be deprived of that right by reason of any adjudication made in a proceeding to which he was not a party.

It will not be necessary therefore to consider the question as to how far the granting or denial of a summary application in a .special proceeding like the present is res adjudicata within the rules which govern in actions. And we rest our decision upon the precise facts of this application, namely, that the parties were not all the same in both applications, -and that the denial of the motion on the first application amounted to nothing more than the dismissal of the complaint in an ordinary civil action for lack ■of proof with regard to some fact which, if properly proved, would have entitled the plaintiff to relief.

It follows that as the proxies should have been received, and as the question is not res adjudicata, the order should be affirmed, with costs.

Van Brunt, P. J., O’Brien and Barrett, JJ., concur.