Opinion
January 10, 1951.
Appeal from Supreme Court, Schenectady County.
Present — Foster, P.J., Heffernan, Deyo, Bergan and Coon, JJ.
The lease described in the complaint and any right of renewal had expired and become academic before this action was commenced. A judgment annulling it would be futile, assuming it was beyond the power of the corporation or the authority of the president to have made the lease. We agree with the view taken by the Official Referee on the merits, however, that the corporation had the power as an incident to its main business to rent for reasonable periods portions of its real estate, and the president by necessary implication would have authority to make short-term leases for the preservation of the real estate not actually needed for corporate purposes. We agree further with the Official Referee's view that plaintiff was in part responsible for a decrease of corporate business and for the diminution of the need for corporate use of all the real estate, and we think plaintiff is therefore estopped from challenging the need for rental arising from a situation he in part created. For a portion of this period plaintiff has already had an accounting by Usher as receiver. He is precluded from collateral attack on that proceeding in this action. For the rest of the period, the account as settled by the Referee is sufficient. The real question in dispute is the right of Usher to continue to pay himself a salary. Usher was examined fully on this and other aspects of his management of the corporation through seventy-three pages of the record. The judgment approves the account. Judgment unanimously affirmed, with costs to respondents.