assent. * * Respondents' points. * involves an application to the stockholders, and on their part consideration, judgment and final determination, and on the part of the assenting stockholders a written expression of their conclusion. The second is the merely formal act of depositing for record the evidence that the requisite assent has been obtained. The statute does not in terms impose upon the corporation the duty of filing the The purpose of the statute in requiring the assent to be filed seems to have been to perpetuate the evidence of the fact, and to free titles acquired under mortgages by corporations from the uncertainty which would attend them if the extrinsic fact of assent was not made a matter of public record. The consent of stockholders is the important and essential thing. The filing is formal and subsidiary. The jurisdiction of equity to supply the formalities to carry out the intention of parties has been frequently exerted. Can it be doubted that a corporation having in its possession the assent of stockholders to an existing mortgage not filed could be compelled, at the instance of the mortgagee, to file the assent, and thereby complete the record of the transaction? Would the corporation be heard to allege as a defence to the mortgage, that, although assented to, the evidence of the assent was not recorded? We think not. To permit the defendant to profit by the neglect of the corporation to file the assent, would be, under the circumstances, most inequitable. Even if the filing of the assent was essential to complete the plaintiff's right, that may now be done as of the time the assent was given." II. Some question was made as to the stock issued to T. C. Van Brunt and James W. Pirsson, because these gentlemen had not fully paid for their stock when it was issued to them. But there is nothing at all in the manufacturing corporation act to pre Respondents' points. vent the company from issuing stock subscribed for before the subscriptions are fully paid. On the contrary, the law implies at least the power to do So. 3 Rev. Stat., 8th ed., p. 1956, § 8; p. 1960, $25; Billings v. Robinson, 28 Hun, 123; Wheeler v. Miller, 90 N. Y. 253. III. The sale of the 26 bonds by the Lyceum at 75 per cent. of their face value was not ultra vires. This was expressly held by Mr. Justice ANDREWS of the Supreme Court in this District, in a case at special term, reported in the Daily Register of Octo ber 14, 1884, Vol. 26, No. 90, entitled Graham v. The Atlanta Hill Gold Mining & Melting Co. He said: "There is nothing in the statutes of this state which prohibits a manufacturing corporation from sellings its bonds at less than par, and sales at much less than par are declared lawful in the Central Gold Mining Co. v. Platt, 3 Daly, 263. It is utterly impossible for the court to say whether sales at 75 per cent, on the dollar would be fraudulent or ill-advised. So long as corporations are authorized by law to incur debts and mortgage their property to secure them, stockholders must protect their interests by electing directors who are faithful and competent, and not expect that courts of equity will assume the management of the corporate business, because the officers may not perform their duties in the most satisfactory manner." See also Ellsworth v. St. L., A. & T. H. R. R. Co., 98 N. Y. 559. IV. Under the authority given by the laws of 1864, chapter 517 and laws of 1878, chapter 163, manufacturing corporations have general authority conferred on them to mortgage their real or personal property for the payment of any debt, subject only to the condition of filing the requisite consent of stockholders. This statute was construed in the following cases: Carpenter v. Black Hawk Gold Mining Co., 65 N. Y. 53; Greenpoint Sugar Co. v. Respondents' points. Whitin, 69 Пb. 328; Martin v. Niagara Falls Paper Manfg. Co., 44 Hun, 134; Lord v. Yonkers Fuel Gas Co., 99 N. Y. 554. In the last cited case, at page 554, the court say: "Where a bond secured by a mortgage is given to the lender for money advanced at the time, the borrower becomes immediately indebted, and it would seem to be immaterial whether the money is applied by the borrower to the payment of some antecedent debt or to other purposes for which he was legitimately entitled to borrow the money." It appeared by the testimony of P. G. Hubert, Andrew G. Myers and V. Spader, that the officers of the company endeavored in good faith to dispose of the 28 bonds not taken by the contractors at par to persons outside of the company, and at prices less than par and down as low as 75 per cent. of their face value, but could not succeed in disposing of them at all to outsiders; and thereupon the resolution was taken to give the stockholders the option of buying them proportionately with their holdings of stock, but most of the stockholders declined to take them at 75 per cent. and at last they were taken at that price by Messrs. Ellis, Myers and Hyslop, who were trustees of the company, and Mr. Howard, who was not a trustee. It sufficiently appears by the whole case that what was done in this respect was in good faith, and for what was considered to be the interest of the company, and not from any selfish motive on the part of the trustees, or any of them, and it was so found by the court. V. This decision of the court below was right because the facts constitute a plain ratification by all the stockholders of the company of the scheme for the disposal of the bonds, and preclude the company, or any new stockholder, from questioning such disposal at this late day. Parsons v. Hayes, 14 Abb. N. C. 419; Kent v. Quicksilver Mining Co., 78 N. Y. Opinion of the Court, by SEDGWICK, Ch. J. 158; Otter v. Brevoort Petroleum Co., 50 Barb. 256; Knowlton v. Congress Spring Co., 57 N. Y. 578; Hotel Co. v. Wade, 97 U. S. 23; Martin v. Niagara Falls Paper Co., 44 Hun, 139; Ffooks v. South, etc., Railway Co., 1 Sim. & G. 142; Graham v. Birkenhead, 2 Mac. & G. 156; In re Magdalena Co., 16 Jurist N. S. 975; Royal Bank of Liverpool v. Grand Junction R. R. Co., 125 Mass. 495; Reed v. Hayt, 51 N. Y. Superior Ct., 121; Morawetz Private Corporations, Second Edition, Art. 623, 625, 626 and 631; In re Syracuse R. R. Co., 91 N. Y. 1. BY THE COURT.-SEDGWICK, Ch. J.-The plaintiff is a corporation formed under the act of this state for the formation of manufacturing and other kinds of corporations. It contests in this action the validity of a mortgage upon the real estate of the corporation made to secure the payment of bonds of some of which the defendants are the holders. The ground taken to impeach the validity is, that "the written assent of the stockholders owning at least two-thirds of the capital stock" of the corporation was not given. There was a written assent. The plaintiff's claim as to this is, that eighty shares represented in the assent had never been lawfully issued, and that the remaining shares represented were not two-thirds of the capital. The learned judge below, in effect, found that if the eighty shares were excluded, there were still represented in the assent two-thirds of the capital stock. * In this he was correct, under the case of Greenpoint Sugar Co. v. Whitin, 69 N. Y. 328. That case decided that "for the purposes of this act, the amount actually issued and owned, should be regarded as the amount of the capital stock. The design was to confer this power of assent upon those who represented two-thirds of the actual stock. They represented two-thirds of Opinion of the Court, by SEDGWICK, Ch. J. the pecuniary interest and property of the corpora tion. The learned counsel for the plaintiff argues that the case cited makes a limitation of the general principle announced, by saying in reference to what it held to be the amount of the capital stock or the 2,000 shares, "and for aught that appears no more was intended to be issued." The meaning of this I take to be, that an assent to a mortgage made by two-thirds of the then capital stock, will not be sufficient if, also, then there is a definite intention of increasing the actual stock by future issuing of shares in a manner that will increase the actual stock. The intention referred to is not a general intention, that is presumed as to all shares not transferred. It would be an attempt to evade the statute, that a mortgage should be made upon the assent of two-thirds of the actual capital, when that was accompanied by the beginning of an arrangement to increase the capital, or even by an intention forthwith to make such an arrangement. That method would be fraudulent as to those who might afterwards become the owners of shares. In the present case the fact is, that if there were an intention to issue the shares, 120 in number, of which the eighty was represented in the assent, the result would be that those 120 shares must be considered part of the actual capital, and then the persons to whom the issue was made would be considered the owners of the shares. In such case there was an assent of two-thirds of the capital stock upon the position taken by the plaintiff. There was further objection taken on the ground that 40 shares represented in the assent had not been paid for in full, but had been paid for only to the extent of the nominal value of 12 shares. It is held in Wheeler v. Millar, 90 N. Y. 359, that neither the issuing of a certificate for shares, nor payment |