Krakowski v. North New York Cooperative Building & Loan Ass'n

Majority

p. 119

Emil Krakowski, Resp’t, v. The North New York Cooperative Building & Loan Association, App’lt.

(New York Common Pleas, General Term,

Filed August 9, 1893.)

Headnote

Appeal—District courts—Return.

Both parties based their claims on certain provisions of defendant’s artv cles of association, which appeared to be contained in a certain exhibit which was not included in the justice’s return, and the corresponding articles contained in an exhibit offered by respondent differed from those set out in appellant’s brief. Held, that a reargument should be ordered to allow the parties to have the return perfected.

Appeal from a judgment for plaintiff, rendered in the district court in the city of New York for the tenth judicial district.

Action to recover by a withdrawing shareholder of the defendant association, pursuant to the provisions of its alleged articles of association, which entitle such a shareholder to return of the amount' paid on the shares issued to him, less all fines and a ratable proportion of losses.

Fred. C. Leubuscher, for resp’t; James C. De La Mare, for app’lt.

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 by laws were offered and received in evidence and marked “ Def’ts 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, and contained in a book entitled “Articles of Association of the North New York Building & 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 Def’ts Exh. 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.

Appeal to be reheard at the November general term. The justice’s return to be amended meanwhile.

Bischoff and Gtegerich, JJ., concur.