p. 437In the Matter of the Central Stamping Company.(Supreme Court, General Term, First Department,Headnote
Corporations—Dissolution—Leave to sue.Leave to sue for the dissolution of a corporation will he granted only on the written application of the attorney general.
Appeal from an order granting application for leave to commence an action to annul the charter of a corporation.
Howard Mansfield, for app’lt; Louis Marshall, for resp’t.
An order permitting an action to be brought to annul the charter of a corporation because it has violated § 1798 of the Code of Civil Procedure should not be granted, except on the written application of the attorney general to the court, stating that in his opinion the action can and ought to be maintained, for reasons given. By statute the duty is devolved on him to determine whether, in his opinion, the action can and should be maintained, which duty he cannot delegate. This determination must be made as the basis of an application, and evidence of it must be presented to the court. In this case no application has been made by the attorney general, or by any one who swears that he is authorized to act for him; and there is no evidence in the record that the attorney general has determined that an action should be
p. 438brought, or that this particular application should be made. In matters so important as the beginning of actions.for the dissolution of corporations, such a practice is too loose, and ought not to .be tolerated. If the attorney general be .of the opinion that such action can and ought to be maintained, he should make a written application to the court, stating his conclusions, accompanied by such affidavits and evidence as is deemed necessary to support the application. The application in this case, if such it. can be called, is simply an affidavit made by an attorney, in which it is stated that in the opinión of the affiant a cause of action exists, and that the suit should be brought; but the affiant does not state that he has been authorized to represent the attorney general, or to make -the application in his behalf. We have not overlooked the opinion of the attorney general, contained in the record, in which he says, “ Counsel for petitioner may apply in nry name, upon notice to the corporation, for leave to commence the action.” Ctiunsel did not apply in the name of the attorney general, but in his own. It is not stated in the opinion that the attorney general has determined that an action can or ought to be maintained. This is altogether insufficient to authorize, the court to grant the order, which should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs, without prejudice to the right of the attorney general to apply for leave to bring an action.