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Mechanics' Building Ass'n v. Stevens

12 N.Y. Super. Ct. 676 5 Duer 676 Court At Special Term, Decision date 1856-06-04 English

Delivered by Duer, J.,

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p. 676
Mechanics’ Building Association v. Stevens, et al.

Headnote

In an action by a building association, against one of its members, to recover monthly dues, in arrear, it is no defence that the association is a “ moneyed incorporation,” within the provisions of the Bevised Statutes, and that its charter, as such, had become void before the commencement of the action, from its failure to comply with the provisions of §§ 29, 30 and 31, of the statute. (1 B. S. 635.)
At Special Term,
June 4, 1856.
This action came before the court, on the trial thereof, having been brought to foreclose a mortgage.
The mortgage, in this case, was given to secure the payment of the monthly dues of a member of the association. The cause was heard on the pleadings and proofs, and it was proved that the association was duly incorporated under the general act for the incorporation of building and other associations, passed April 10, 1851, and that default had been made in thcpayment of the sums set forth in the complaint. The only defence relied on was, that the association was a “ moneyed incorporation,” within the provisions of the Revised Statutes, and that its charter, as such, before the commencement of the suit, had become void, from its failure to comply with the provisions contained in §§ 29, 30 and 31, of the statute. (1 R. S. 535.)

held, that this is not a defence of which the defendants can avail themselves; that, admitting that the association was a moneyed corporation, subject, as such, to the provisions of the

p. 677
Revised Statutes, and that, by its failure to comply with those provisions, it had forfeited its charter, it belonged to the state alone, by a proceeding instituted for that purpose, to enforce the forfeiture, and that the association, until by a judicial sentence its charter was declared to be void, was a corporation de facto, and that no private person, more especially no person dealing with it, could be permitted to say that it was not also a corporation de jure. (Triton Ins. Co. v. McGarian, 4 Denio, 392 ; Brower v. Appleby, 1 Sand. S. C. R. 107; Palmer v. Lawrence, 3 id. 161, 170.)

Judgment for plaintiff, directing salé of mortgage and premises.