« ΠροηγούμενηΣυνέχεια »
And the said plaintiffs further state, that Henry E. Davies, of the city of New-York, is rightfully entitled to the said office of justice of the Supreme Court of the State of New-York, and to all the rights, franchises and emoluments thereof, and has been so entitled from and since the 6th day of November, 1855, and during all the time aforesaid; and in order to state and set forth the right and title of the said Henry E. Davies thereto, and that the said Edward P. Cowles has no right or title thereto, the
aid plaintiffs further state, that, &c., &c., [setting forth the facts of the election, number of votes given, canvassing the same, $C., &c.]
That at such election, so held on the 6th November, A. D. 1855, there were given, for such short term to fill a vacancy, 49,848 votes, of which the said Henry E. Davies received 17,996 votes ; Henry Hilton received 15,526 votes; William H. Leonard received 9,933 votes; and Charles A. Peabody 5,782 votes ; and there were 611 scattering votes.
And that thereupon the said Henry E. Davies took and subscribed the oath of office, required by the constitution of the United States and by the constitution and laws of the said state to be taken by a justice of the Supreme Court of said state, and deposited the same in the office of the Secretary of State of the said state.
And the said plaintiffs say, that on the 3d day of December, A. D. 1855, the Governor of the State of NewYork, in due form of law, appointed the said Edward P. Cowles a justice of the Supreme Court of the State of New-York to the vacancy occasioned by the death of the said Robert H. Morris ; and that thereupon the said Edward P. Cowles took and subscribed the oath of office, required by the constitution of the United States and by the constitution and laws of the State of New York, and deposited the same in the office of the Secretary of State of said state. But these plaintiffs allege that such appointment was not in accordance with or authorized by the laws or constitution of said state.
And the said plaintiffs further allege, that at the aforesaid general election the greatest number of votes duly given by qualified electors, who voted for any person to fill the vacancy created by the death of the said Robert H. Morris, were given for the said Henry E. Davies, to fill said vacancy; by virtue whereof, and of the proceedings aforesaid, the said plaintiffs insist and submit that he became, and was on the 7th day of November, A. D. 1855, and from thence continually has been and still is, a justice of the Supreme Court of the State of New-York; and that by virtue of such election, he, the said Henry E. Davies, is entitled to hold, use and exercise the same.
Whereupon the said plaintiffs pray judgment, that the said defendant, Edward P. Cowles, has usurped and unlawfully held and exercised the said office of justice of the Supreme Court of the State of New York, and the rights and franchises appertaining thereto, since the said 3d day of December, aforesaid, and still does so unlawfully hold and exercise the same; and that he be ousted and removed therefrom; and further judgment that the said Henry E. Davies is entitled to the said office, and the rights, franchises and fees thereof, and has been so entitled since the said 6th day of November, A. D. 1855 ; and that the defendant do pay to the plaintiffs the damages, costs and expenses in this action.
By a stockholder, on behalf of himself and all other stock
holders who may come in and contribute to the expenses of the suit, to dissolve an incorporated company, praying an accounting and distribution of property among the stockholders, and an injunction and receiver.'
SUPREME COURT-CITY AND COUNTY OF NEW-YO
Jeremiah G. Hamilton
Vanderbilt, Charles Morgan, George A.
Jeremiah G. Hamilton, plaintiff, on behalf of himself and all other stockholders of the Accessory Transit Company
who may come in and contribute to the expenses of this suit, complains and alleges :
* The Court, on the trial, found that it would be more conducive to the interest of the stockholders to leave the affairs of the company under its then management, to be determined by a majority of the stockholders (no fraud being proved, or conduct injurious to the property or rights of the company ), and on this ground denied the relief claimed and dismissed the complaint.
* As to the propriety and necessity of bringing the action in behalf of all the stockholders, and the cases in which one or more parties may bring an action or defend for the benefit of the whole, see Pleadings, 125 to 133; 673 to 676.
Where the associates or shareholders of a private association are numerous, a bill may be filed by one of such association, in behalf of himself and all the others, against the trustees of such association, to compel the execution of the trust, and for an account and distribution of the funds and property of the association among the shareholders. And it is not necessary that all of the associates should unite in a bill for that purpose. (Mann o. Butler and others, 2 Barb, Ch. R., 362.)
First. That the Accessory Transit Company, previous to the decree of dissolution hereinafter mentioned, was a corporation created by the government of the State of Nicaraugua, and a copy of the charter of the said company is hereto annexed, marked A.
Second. That, up to the time of the said decree of dissolution, the said corporation kept an office within the city of New-York, for the transaction of its business, and its directors and officers at that time were all residents of the said city.
Third. That on the 18th day of February, 1836, the government of the said State of Nicaraugua made and published a decree, of which a copy is hereto annexed, marked B, dissolving the said corporation.
Fourth. That at the time of the said decree, Cornelius Vanderbilt was the president of the said company, and one of its directors; Thomas Lord was the vice-president of the said company, and another of its directors; and Joseph L. White, Joseph Ogden, James M. Cross, Chauncy St. John, George A. Hoyt and William G. Lord were the other directors of the said company, all of whom then resided, and now reside, in the city of New-York.
Fifth. That, notwithstanding the said dissolution, the then directors of the said company proceeded as if the said company was not dissolved; held a new election for directors on or about the 5th day of May, 1856, when Frank Work, William Whitewright, Jr., Chauncy St. John, Joseph L. White, Richard Schell and Peleg Hall were elected directors of the said company, and Cornelius Vanderbilt was elected president.
Sixth. That the said Joseph L. White and Richard Schell resigned as such directors, and Daniel B. Allen was chosen director, as plaintiff is informed and believes.
Seventh. That the said Cornelius Vanderbilt has, ever since the said dissolution, acted as president of the said company; and, since the election and choice last aforesaid, the said Frank Work, William Whitewright, Jr., Chauncy St. John, Daniel B. Allen and Peleg Hall have acted as directors of the said company; and that the said Joseph L. White, Joseph Ogden and William G. Lord delivered over the property of the said company in their hands to the said new directors.
Eighth. That the said Vanderbilt, Work, Whitewright, St. John, Allen and Hall have possessed themselves of a large amount of property of the said company, and are using the same without regard to the said decree of dissolution or the rights of the stockholders consequent thereon.
Ninth. That the said Vanderbilt had, at the time of the said dissolution, and still has in his possession or under his control, a large amount of the property of the said company
Tenth. That by an agreement heretofore made between the said company and a certain other corporation, known as the Pacific Mail Steamship Company, the latter company agreed to pay to the said Accessory Transit Company $40,000 a month for a period not yet elapsed, and that the said sum has been paid and received by the said Vanderbilt, as the agent of the said Accessory Transit Company, as the plaintiff is informed and believes.
Eleventh. That the defendants, Charles Morgan and Geo. A. Hoyt, have in their possession two steamers called the Northern Light and Star of the West, belonging to
the said company.