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CHAP. IX.

Art. VIII. it has not been revoked, is presumptive evidence of the execution

thereof, and conclusive evidence of the authority of the officer executing it.

3. If such a designation is not in force, or if neither the person designated, nor an officer specified in subdivision first of this section can be found with due diligence, and the corporation has property within the State, or the cause of action arose therein; to the cashier, a director, or a managing agent of the corporation, within the State.

(Laws of 1855, chap. 279.) Hiller v. Burlington and Missouri River Railroad Co., 70 N. Y. 223; Atlantic and Pacific Telegraph Co. v. Baltimore and Ohio Railroad Co., 46 N. Y. Supr. (J. & S.) 406, 419 ; S. C., 87 N. Y. 358 ; Pope v. Terre Haute Car and Manufacturing Co., 60 How. 420 ; S. C., 24 Hun, 239; S. C., 87 N. Y. 137 ; Sterret v. Denver and Rio Grande Railroad Co., 17 Hun, 317; Red

dington v. Mariposa Land and Mining Co., 19 id. 406. Service of $ 433. The provisions of this article, relating to the mode of process, etc., to

service of a summons, apply likewise to the service of any process a special or other paper, whereby a special proceeding is commenced in a proceed

court, or before an officer, except a proceeding to punish for contempt, and except where special provision for the service thereof is otherwise made by law.

com mence

ing

References to other Provisions of the Code of Civil Procedure on the

subject. § 438. Subd. 1. Order may be made directing service of summons upon a foreign corporation, without the State or by publication.

Subd. 2. Also in like manner upon a domestic corporation in certain cases.

Smith v. Mahon, 27 Hun, 40.

8 610. Service of an injunction order upon a corporation may be made in the manner prescribed for making personal service of a summons upon a corporation. Copies of the papers upon which the order was granted must be delivered with the copy of the order.

§ 2071. Service of an alternative writ of mandamus upon a corporation may be made upon any officer thereof upon whom a summons may be served.

§ 2526. Service of a citation issued by a surrogate's court may be made upon a corporation, in the manner prescribed for personal service of a summons upon a corporation.

CHAP. IX.

§ 2879. In actions in justice's courts the summons may be personally Art. IX. served upon a corporation by delivering a copy thereof to an officer or person, to whom a copy of a summons in an action against the corporation in the supreme court, might be delivered, as prescribed in sections 431 and 432 of this act; or to any director or trustee of the corporation, by whatever official title he is called.

ARTICLE IX –ACTIONS RELATING TO A CORPORATION.
1880, Code of Civil Procedure, Part II, Chap. XV, Title II-AC-

tions relating to a corporation.
ART. 1. Action by a corporation, and action against a corporation,

to recover damages or property.
2. Judicial supervision of a corporation, and of the officers

and members thereof.
3. Actions to procure the dissolution of a corporation, and

actions to enforce the individual liability of the officers
or members of a corporation, with or without a disso-

lution thereof.
4. Action by the people to annul a corporation.
5. Provisions applicable to two or more of the actions speci-

fied in this title.

in actions

tions,

(ART. 1.) – ACTION BY A CORPORATION, AND ACTION AGAINST A CORPORA

TION, TO RECOVER DAMAGES OR PROPERTY.
SEC. 1775. Complaint in actions by or against corporations.

1776. When proof of corporate existence unnecessary.
1777. Misnomer, when waived.
1778. Action against a corporation upon a note, etc.
1779. When foreign corporation may sue.

1780. When foreign corporation may be sued. $ 1775. In an action brought by or against a corporation, the complaint complaint must aver that the plaintiff, or the defendant, as the case by oor

against may be, is a corporation; must state whether it is a domestic cor

corporaporation or a foreign corporation; and if the latter, the State, country or government by or under whose laws it was created. But the plaintiff need not set forth, or specially refer to, any act or proceeding by or under which the corporation was created. Irving National Bank v. Corbett, 10 Abb. N. C. 85. $ 1776. In an action brought by or against a corporation, the When

proof of piaintiff need not prove, upon the trial, the existence of the

corpo corporate ration, unless the answer is verified, and contains an affirmative allegation that the plaintiff or the defendant, as the case may be, is not a corporation.

§ 1777. In an action or special proceeding brought by or against Misnomer, a corporation, the defendant is deemed to have waived any mis- when

waived.

existence unnecessary.

Action

When

CHAP. IX.
Art. ix. take in the statement of the corporate name, unless the misnomer

is pleaded in the answer or other pleading in the defendant's
behalf.

$ 1778. In an action against a foreign or domestic corporation, against a corporation to recover damages for the non-payment of a promissory note, or note, etc. other evidence of debt, for the absolute payment of money, upon

demand, or at a particular time, an order, extending the time to answer or demur, shall not be granted, except by the court, upon notice to the plaintiff's attorney. In such an action, unless the defendant serves, with a copy of his answer or demurrer, a copy of an order of a judge, directing that the issues presented by the pleadings be tried, the plaintiff may take judgment, as in case of default in pleading, at the expiration of twenty days after service of a copy of the complaint, either personally with the summons, or upon the defendant's attorney, pursuant to his demand therefor; or, if the service of the summons was otherwise than personal, at the expiration of twenty days after the service is complete.

McKee v. Metropolitan Life Ins. Co., 25 Hun, 583 ; New York Life Ins. Co. v. Universal Life Ins. Co., 88 N. Y. 424.

$ 1779. An action may be maintained by a foreign corporation, foreign corporation in like manner, and subject to the same regulations, as where the

action is brought by a domestic corporation, except as otherwise specially prescribed by law. But a foreign corporation cannot maintain an action, founded upon an act, or upon a liability or obligation, express or implied, arising out of, or made and entered into in consideration of, an act, which the laws of the State forbid a corporation or association of individuals to do, without express authority of law. This section does not affect the validity of a meeting of the stockholders or directors of a foreign corporation, held within the State, where such a meeting is authorized by the laws of the State, country, or government, by or under which the corporation is created; or of an act, done at such a meeting, which is not in conflict with the same laws, or the laws of the

State. When

$ 1780. An action against a foreign corporation may be maincorporation tained by a resident of the State, or by a domestic corporation,

for any cause of action. An action against a foreign corporation may be maintained by another foreign corporation, or by a nonresident, in one of the following cases only;

1. Where the action is brought to recover damages for the breach of a contract, made within the State, or relating to property situated within the State, at the time of the making thereof.

may sue.

may be

sued.

CHAP. IX. 2. Where it is brought to recover real property situated within Art. ix. the State, or a chattel, which is replevied within the State.

3. Where the cause of action arose within the State, except where the object of the action is to affect the title to real property situated without the State.

Pope v. Terre Haute Car and Manufacturing Co., 60 How. 420; S. C., 24 Hun, 239; S. C., 87 N. Y. 137 ; Erwin v. Oregon Railway and Navigation Co., 62 How. 491 ; Seignouret v. Southern Bank of New Orleans, 3 Law Bull. 59.

(Art. 2.) JUDICIAL SUPERVISION OF A CORPORATION, AND OF THE OFFI

CERS AND MEMBERS THEREOF.

for mis

Sec. 1781. Action against directors, etc., of a corporation, for misconduct.

1782. By whom action to be brought.

1983. This article, how construed. SECTION 1781. An action may be maintained against one or more Action trustees, directors, managers, or other officers of a corporation, to directors, procure a judgment for the following purposes, or so much thereof etc., of a

corporation as the case requires :

conduct. 1. Compelling the defendants to account for their official conduct, in the management and disposition of the funds and property, committed to their charge.

2. Compelling them to pay to the corporation, which they represent, or to its creditors, any money, and the value of any property, which they have acquired to themselves, or transferred to others, or lost, or wasted, by a violation of their duties.

3. Suspending a defendant from exercising his office, where it appears that he has abused his trust.

4. Removing a defendant from his office, upon proof or conviction of misconduct, and directing a new election to be held by the body or board, duly authorized to hold the same, in order to supply the vacancy created by the removal ; or, where there is no such body or board, or where all the members thereof are removed, directing the removal to be reported to the governor, who may, with the advice and consent of the senate, fill the vacancies.

5. Setting aside an alienation of property, made by one or more trustees, directors, managers or other officers of a corporation, contrary to a provision of law, or for a purpose foreign to the lawful business and objects of the corporation, where the alienee knew the purpose of the alienation.

action to be

CHAP. IX.
Art. IX. 6. Restraining and preventing such an alienation, where it is

threatened, or where there is good reason to apprehend that it will
be made.

People v. Bruff, 60 How. 3 ; S. C., 9 Abb. N. C. 155. By whom $ 1782. An action may be brought, as prescribed in the last

section, by the attorney-general in behalf of the people of the brought.

State ; or, except where the action is brought for the purpose specified in subdivision third or fourth of that section, by a creditor of the corporation, or by a trustee, director, manager, or other officer of the corporation, having a general superintendence of its concerns.

People v. Bruff, 60 How. 3, 7; S. C., 9 Abb. N. C. 155. This

$ 1783. This article does not divest or impair any visitatorial article, how construed. power over a corporation, which is vested by statute in a corpo

rate body, or public officer.

(Art. 3.) ACTIONS TO PROCURE THE DISSOLUTION OF A CORPORATION, AND

ACTIONS TO ENFORCE THE INDIVIDUAL LIABILITY OF THE OFFICERS OR
MEMBERS OF A CORPORATION, WITH OR WITHOUT A DISSOLUTION THEREOF.
Sec. 1784. Action by judgment creditor for sequestration, etc.

1985. Action to dissolve a corporation.
1786. Id.; by whom to be brought.
1987. Temporary injunction.
1988. Receiver may be appointed. Permanent and temporary receiver, Powers,

etc., of temporary receiver,
1789. Additional powers and duties may be conferred upon temporary receiver.
1790. Making stockholders, etc., parties.
1791. When separate action may be brought against them.
1792. Proceedings in either action.
1793. Judgment; property of corporation to be distributed
1794. Id. ; stock subscriptions to be recovered.
1795. Id.; as to liabilities of directors and stockholders.
1796. Effect of this article limited.

Action by § 1784. Where final judgment for a sum of money has been judgment creditor for rendered against a corporation created by or under the laws tion, etc. of the State, and an execution issued thereupon to the sheriff

of the county, where the corporation transacts its general business, or where its principal office is located, has been returned wholly or partly unsatisfied, the judgment creditor may maintain an action to procure a judgment, sequestrating the property of the corporation, and providing for a distribution thereof, as prescribed in section 1793 of this act.

Attorney-General v. Guardian Mutual Life Ins. Co., 77 N. Y. 272. Action to dissolve a

§ 1785. In either of the following cases, an action to procure a corporation.

judgment, dissolving a corporation created by or under the laws

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