Equity Gas Light Co. v. McKeige — 47 N.Y. St. Rep. 364

Majority

p. 364

The Equity Gas Light Co., Resp’t, v. Ferdinand McKeige, App’lt.

(Supreme Court, General Term, Second Department,

Filed July 22, 1892.)

Headnote

Corporations—Cancellation of stock issued for contractors—Authorization of.

Plaintiff issued certain stock which it placed in the hands of its treasurer to be delivered to contractors on completion of their contract. The work was not begun, as two of the contractors were convicted and imprisoned and the other became a fugitive. The one who had been actively-engaged in procuring the contract subsequently gave an order for the surrender of the stock to the company; which he signed for all the contractors. He had previously given the company a paper signed by the fugitive, stating that any agreement made would be satisfactory to him, but the evidence as to the genuineness of the paper was conflicting. There was authority to sign from the other. Held, that the finding that the fugitive united with his co-contractors in cancelling the certificate would not be disturbed, and that plaintiff was entitled to a surrender thereof.

Appeal from judgment in favor of plaintiff.

Gratz Nathan, for app’lt; Horace Graves, for resp’t.

—On the 27th of August, 1889, the plaintiff issued to its president a certificate for thirty thousand shares of its stock. The plaintiff company had just before that made a construction agreement with George F. Work, Louis E. Plieffer and John McFarlone. The certificate was to be deposited with the defendant until the agreement was fulfilled- by the contractors. Work and Plieffer were convicted for some crime in Pennsylvania, and were imprisoned, and McFarlone became a fugitive. The defendant, was the treasurer of the plaintiff, and knew of the agreement, and the same is specified in the receipt which he gave to the contractors for the stock. On the 21st of November, 1890, the contractors authorized the cancellation of the stock certificate; this authorization was not signed by McFarlone personally, but was signed by Work in his name. Work had been a principal actor for all the firm of contractors, and had given an order on the defendant in October, 1890, to deliver up the stock to plaintiff’s president. It was proven that Plieffer had given authority to Work to sign this order for him. On the 27th of November, 1890,' the contractors gave a general release to the plaintiff. Work signed this paper for McFarlone. The only material dispute in the case is as to the authority of Work to act for McFarlone. In the early part of 1890 Work gave to the plaintiff’s president a paper purporting to have been signed by McFarlone, stating that any agreement made between the plaintiff and Work and Plieffer would be satisfactory to him. Devlin, who knew McFarlone’s' handwriting, testified to its genuineness. Devoe testified that it was not. The paper is not dated, and has no place upon it indicating where it was written. The fact that he was then a fugitive

p. 365

will probably account for this; but if the handwriting is genuine, those facts are of no importance. There is no sufficient ground to reverse the finding of the trial judge that McFarlone united with his co-contractor in cancelling the certificate.

The judgment should be affirmed, with costs.

Dyxman and Cullen, JJ., concur.