In opposition, the plaintiff failed to raise a triable issue of fact. The test applied by the courts to determine whether a sale is within the purview of Business Corporation Law § 909 (a) is not the dollar amount of the assets involved in the transfer ( see Eisen v Post, 3 NY2d 518, 523; Matter of Miglietta [2660 Broadway Corp.], 287 NY 246, 254-255 [1942]; Vig v Deka Realty Corp., 143 AD2d 185; see also Matter of Timmis, 200 NY 177, 181-182 [1910]; Matter of Schutte, 114 N.Y.S.2d 162, 165-166 [1952]). Rather, the test is whether the sale was made in the regular course of the business actually conducted by the corporation in furtherance of the objects of its existence, or something outside of its normal and regular course of business ( see Eisen v Post, 3 NY2d at 523; Matter of Miglietta [2660 Broadway Corp.], 287 NY at 254-255; Vig v Deka Realty Corp., 143 AD2d 185; see also Matter of Timmis, 200 NY at 181-182; Matter of Schutte, 114 N.Y.S.2d at 165-166).

We do not now decide whether it is possible by provision in such a certificate to enlarge the statutory right of appraisal. We hold on the authority of Eisen v. Post ( 3 N.Y.2d 518) and Matter of Roehner v. Gracie Manor ( 6 N.Y.2d 280) that the instant sale was within the regular course of business of the respondent and the petitioners are not entitled to an appraisal of their stock by reason thereof. The order directing an appraisal should be reversed, on the law and on the facts, with costs to respondent-appellant, and petitioners-respondents' motion therefor denied.

In deciding whether an exception to the statute is applicable, the inquiry is often framed in terms of whether, in light of the corporation's purposes and objectives, the sale at issue is in the corporation's ordinary course of business. See, e.g., Eisen v. Post, 3 N.Y.2d 518, 146 N.E.2d 779, 169 N.Y.S.2d 15 (1957); 19 Am.Jur.2d, supra, § 1531. "In the ordinary course of the corporation's business" is a term of art when used in the context of shareholder consent statutes.

We assume for purposes of this decision that as a result of the unauthorized nature of the transfer purportedly made by the debtor, it can recover the Keta shares from Doeskin, but that it can recover them only if it tenders back to Doeskin such benefit as it has received from the carrying out of the transaction. The question whether such a tender back is required in the present circumstances is not without considerable difficulty, e.g. compare United States Fidelity Guaranty Co. v. Newburger, 1933, 263 N.Y. 16, 188 N.E. 141, with, Appleton v. Citizens Bank, 190 N.Y. 417, 421, 83 N.E. 470, 32 L.R.A., N.S., 543, affirmed 1909, 216 U.S. 196, 30 S.Ct. 364, 54 L.Ed. 443; Losie v. Ken-Vic, 3rd Dept. 1943, Sup., 43 N.Y.S.2d 914, affirmed 266 App. Div. 1045, 44 N.Y.S.2d 473; Eisen v. Post, 1 A.D.2d 344, 149 N.Y.S.2d 864, reversed on other grounds, 1957, 3 N.Y.2d 518, 169 N.Y.S.2d 15, but it need not be decided here in view of our decision of the ultimately decisive question of whether or not the debtor received the Doeskin shares surrendered by the transfer agent. Two New York cases establish that Callahan's receipt of the Doeskin certificates from the transfer agent did not amount to their receipt by the debtor.

Trulock v. Kings County Iron Foundry, Inc., 216 A.D. 439, 215 NYS 587 (1st Dept.1926); Berwin & Co., Inc. v. Hewitt Realty Co., 199 A.D. 453, 191 NYS 817 (1st Dept.1922) aff'd, 235 N.Y. 608, 139 N.E. 754 (1923); People v. Ballard, 134 N.Y. 269, 32 N.E. 54 (1892). There is, however, a line of cases holding that a sale of all of the assets of a real estate corporation actively engaged in the purchase and sale of real estate is considered to be in the ordinary course of business and would not require the two-thirds approval of the shareholders. In re Roehner, 6 A.D.2d 580, 180 N.Y.S.2d 586 (1st Dept.1958), aff'd 6 N.Y.2d 280 (1959); Eisen v. Post, 1 A.D.2d 344, 149 N.Y.S.2d 864 (1st Dept.1956), rev'd on other grounds, 3 N.Y.2d 518, 169 N.Y.S.2d 15, 146 N.E.2d 779 (1957); Epstein v. Gosseen, 235 A.D. 33, 256 N.Y.S. 49 (1st Dept.1932). However, this exception cannot apply in this case because the certificate of incorporation of the debtor was never produced.

FROESSEL, J. We agree with the Appellate Division that ordinarily the sale by a real estate corporation of its sole asset is not outside the regular course of business so as to require stockholder consent (Stock Corporation Law, § 20; Eisen v. Post, 3 N.Y.2d 518). The reason for this principle ceases to apply, however, where as is here alleged such sale is pursuant to a prior plan of corporate dissolution. Eisen v. Post ( supra) did not hold to the contrary, since the majority opinion there was predicated upon the presumptive continuation of the corporation in business.

Decided February 27, 1958 Appeal from ( 3 N.Y.2d 518) MOTIONS FOR REARGUMENT

In addition, even assuming that the leasehold is an asset, the defendants' own appraiser conceded that the transferred South Road property constituted at least 62% of Eberhard's holdings, while other record evidence supports the plaintiff's assessment that it made up 90 to 93%. Accordingly, it appears to me that there is, at a minimum, a question of fact as to whether the parcel conveyed to Post Road could properly be characterized as "all or substantially all" of Eberhard's assets (Business Corporation Law § 909 Bus. Corp. [a]), such that the approval of two-thirds of the corporation's shareholders should have been obtained in advance of its transfer ( see, e.g., Eisen v. Post, 3 N.Y.2d 518, 526; Vig v. Deka Realty Corp., 143 A.D.2d 185; Stratford May Corp. v. Euster, 24 A.D.2d 935; cf., Matter of Roehner v. Gracie Manor, 6 N.Y.2d 280; Soho Gold v. 33 Rector St., 227 A.D.2d 314).

In support of their contention, the plaintiffs point to Deka's certificate of incorporation which, as noted above, authorizes the corporation to sell real property. The statute, however, applies to sales "not made in the usual or regular course of the business actually conducted by such corporation" (Business Corporation Law § 909 [a] [emphasis added]; see generally, Eisen v Post, 3 N.Y.2d 518, 526 [Fuld, J., dissenting], rearg denied 4 N.Y.2d 805; Stratford May Corp. v Euster, 24 A.D.2d 935, lv denied 17 N.Y.2d 420; Boyer v Legal Estates, 44 Misc.2d 1065). Deka's regular business was managing this one piece of property.

The test to be applied when ascertaining whether all or substantially all assets are about to be sold is not the amount or value of the assets disposed of, but rather the nature of the transaction, that is, is the sale in furtherance of the expense object of the corporation. Good v. Lackawanna Leather Co., 96 N.J. Super. 439, 233 A.2d 201, 210 (N.J.Sup.Ct.Ch. 1967); Eisen v. Post, 3 N.Y.2d 518, 169 N.Y.S.2d 15, 18, 146 N.E.2d 779, 780 (N.Y.Ct.App. 1957); In Re Timmis, 200 N.Y. 177, 93 N.E. 522 (N.Y.Ct.App. 1910). See Stiles v. Aluminum Products Co., 338 Ill. App. 48, 86 N.E.2d 887, 889 (1st Dist. 1949); Annot., 9 A.L.R.2d 1306, 1309 (1950).