Opinion
March 8, 1907.
John C. Ten Eyck, for the appellant.
W.E. Kisselburgh, Jr., for the respondent.
Present — PATTERSON, P.J., INGRAHAM, McLAUGHLIN, CLARKE and SCOTT, JJ.
We are entirely satisfied with the conclusion reached by the referee as to the main question involved and would affirm the judgment upon his opinion were it not for the fact that we think he erred in fixing the date from which interest should be allowed.
Under the provisions of article 15 of the association a member owning unpledged shares was entitled to withdraw upon giving written notice to that effect, and upon the expiration of sixty days after such notice had been given, to receive the book value of the shares, less certain things which were chargeable against them, but that no greater sum than forty per cent of the dues received in any one month should be applicable to the payment of the withdrawing member without the consent of the board of directors, and that withdrawing members should be paid in the order in which their notices of withdrawal were filed with the company, and if the amount of money on hand, applicable to the payment of withdrawing members was not sufficient to meet all claims of withdrawal within sixty days after the notice had been filed, then claims should not be deemed to be due until such time as forty per cent of the receipts from dues, subsequent to the time of filing of the notice, should amount to a sum sufficient to pay the book value of such shares.
The learned referee allowed interest on the amount which he found to be due the plaintiff from June 21, 1894, the date when the reorganization took place, but there is absolutely no proof that the defendant then had any funds applicable to the payment of the plaintiff's claim; on the contrary, the only proof bearing on that subject is that the defendant received for dues from August, 1893, to December, 1895, both inclusive, the sum of $41,027.38 of which the forty per cent applicable for withdrawals under the articles of association amounted to $16,410.94. Out of this fund thirty-one shareholders who had filed notices prior to the plaintiff and whose claims aggregated $7,423.73 first had to be paid, and it is impossible to determine from the record when the fund was sufficient to pay the plaintiff, and in the absence of proof bearing on that subject it must be assumed to be at the end of the period during which it is stipulated the sum was accumulated, viz., December, 1895. Therefore, we think interest did not commence to run until January 1, 1896.
The judgment, therefore, should be modified by allowing interest on the principal sum which the plaintiff was entitled to withdraw, $840, from January 1, 1896, and as thus modified the same should be affirmed, without costs to either party.
Judgment modified as directed in opinion and as modified affirmed, without costs. Settle order on notice.