93 N.Y. 474, Concordia Savings & Aid Ass'n v. Read

Citation:93 N.Y. 474
Party Name:THE CONCORDIA SAVINGS AND AID ASSOCIATION, Respondent, v. ELIZABETH A. S. READ, Impleaded, etc., Appellant.
Case Date:October 16, 1883
Court:New York Court of Appeals
 
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Page 474

93 N.Y. 474

THE CONCORDIA SAVINGS AND AID ASSOCIATION, Respondent,

v.

ELIZABETH A. S. READ, Impleaded, etc., Appellant.

New York Court of Appeal

October 16, 1883

Argued October 1, 1883.

Page 475

COUNSEL

O. O. Cottle for appellant. As the mortgage was given to secure dues on shares, it was incumbent on the plaintiff to show its right to dues and their amount. ( Thomas v. Van Ness, 4 Wend. 549; N.Y. Firemen's Ins. Co. v. Ely, 2 Cow. 678; L. & F. Ins. Co. v. Mech. F. Ins. Co., 7 Wend. 31; Fulton B'k v. Benedict, 1 Hall, 480; Western Loan Co. v. Conroy, MS. Op., Gen. Term, 8th Judicial Dist.) The defendant Meier was not a member of the association at the time the bond and mortgage were given, he having signed a certified copy of the constitution, instead of the original, as required by law. (Laws of N.Y. chap. 122, § 2, p. 234; Certigan v. Gould, 5 Denio, 290.) The burden of proof was on the plaintiff, and it has failed to show what amount, if any, was due. ( Butler v. Tucker, 24 Wend. 447; Smith v. Briggs, 3 Denio, 73; Stewart v. Cuyler, 17 Barb. 482; Thomas v. Van Ness, 4 Wend. 349.) The company could advance money to shareholders by way of ante-redemption of shares owned by the shareholder, but the law does not authorize the company to loan its shares. (Laws of 1851, chap. 122, p. 234.)

Adelbert Moot for respondent. The mere denial of the answer was not enough to put the plaintiff to proof of its incorporation.

Page 476

(Laws of 1875, chap. 508; 53 How. 242; 40 N.Y. 410; 7 Daly, 399; 5 Abb. Dig. 167, 168; Park B'k v. Tilton, 15 Abb. Pr. 348; Code of Civ. Proc., § 1776.) The Meiers having dealt with the plaintiff as a corporation, and having admitted they were members thereof, and having received the benefits of their contract, are estopped by their own acts from denying that the plaintiff is a corporation. ( McFarlan v. Triton Ins. Co., 4 Denio, 395; White v. Koss, 15 Abb. 66; Eaton v. Aspinwall, 19 N.Y. 119; Steam Nav. Co. v. Weed, 17 Barb. 378; Dorris v. Sweeney, 64 Id . 636; Aspinwall v. Sachi, 57 N.Y. 331; B. & A. R. R. Co. v. Cary, 26 Id . 75; McLaughlin v. Citizens' Building & Loan Ass'n, 62 Ind. 262; Second Manhattan Building Ass'n v. Hayes, 4 Abb. Ct. of App. Dec. 184, 185.) The appellant, being a privy in estate to Emil and Barbara Meier, is also estopped. (Willard on Real Estate, 369; 3 Washburn on Real Property, 110, § 55; Lansing v. Montgomery, 2 Johns. 382; Douglass v. Scott, 5 Ohio, 199; 13 N.H. 389; 53 Penn. St. 351; 1 Greenleaf on Evidence, § 189, pp. 216, 217; Abbott's Trial Evidence, § 31, p. 712; Carver v. Astor, 4 Pet. 1; 9 Paige, 646.) Membership in any particular company or corporation depends upon the general or special law under which the company is formed, or the articles or certificate of incorporation. (Field on Corporations, § § 124, 127; Fosdick v. Sturgis, 1 Bliss, 225; Angel & Ames on Corporations, § 476; Chester Glass Co. v....

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