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 it has not been revoked, is presumptive evidence of the execution thereof, and conclusive evidence of the authority of the officer executing it. Service of process, etc., to com mence a special proceed ing. 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; Reddington v. Mariposa Land and Mining Co., 19 id. 406. § 433. The provisions of this article, relating to the mode of service of a summons, apply likewise to the service of any process or other paper, whereby a special proceeding is commenced in a 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. 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. § 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. ART. I. Action by a corporation, and action against a corporation, 2. Judicial supervision of a corporation, and of the officers 3. Actions to procure the dissolution of a corporation, and 4. Action by the people to annul a corporation. 5. Provisions applicable to two or more of the actions speci- (ART. I.) ACTION BY A CORPORATION, AND ACTION AGAINST A CORPORATION, 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. in actions against tions. § 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 or 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. proof of existence § 1776. In an action brought by or against a corporation, the When plaintiff need not prove, upon the trial, the existence of the corpo- corporate ration, unless the answer is verified, and contains an affirmative unnecesallegation that the plaintiff or the defendant, as the case may be, is not a corporation. sary. § 1777. In an action or special proceeding brought by or against Misnomer, a corporation, the defendant is deemed to have waived misany when waived. 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. Action against a upon a note, etc. § 1778. In an action against a foreign or domestic corporation, corporation to recover damages for the non-payment of a promissory note, or 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. When foreign may sue. 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, 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 foreign corporation may be sued. § 1780. An action against a foreign corporation may be maintained 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. 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 OFFICERS AND MEMBERS THEREOF. SEC. 1781. Action against directors, etc., of a corporation, for misconduct. SECTION 1781. An action may be maintained against one or more Action against trustees, directors, managers, or other officers of a corporation, to firectors, procure a judgment for the following purposes, or so much thereof etc., of a as the case requires : 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. corporation for misconduct. CHAP. IX. Art. IX. By whom action to be brought. This article, how construed. 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. § 1782. An action may be brought, as prescribed in the last section, by the attorney-general in behalf of the people of the 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. § 1783. This article does not divest or impair any visitatorial power over a corporation, which is vested by statute in a corporate body, or public officer. Action by judgment sequestration, etc. (ART. 3.) ACTIONS TO PROCURE THE DISSOLUTION OF A CORPORATION, AND SEC. 1784. Action by judgment creditor for sequestration, etc. 1786. Id.; by whom to be brought. 1787. Temporary injunction. 1788. 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. 81784. Where final judgment for a sum of money has been creditor for rendered against a corporation created by or under the laws 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. Action to dissolve a corporation. 272. Attorney-General v. Guardian Mutual Life Ins. Co., 77 N. Y. § 1785. In either of the following cases, an action to procure a judgment, dissolving a corporation created by or under the laws |