Opinion
December 4, 1961
In a proceeding pursuant to section 25 of the General Corporation Law, to invalidate the purported election of Norman Studer, his wife Hannah D. Studer and seven others, as directors and officers of a membership corporation, to wit, Camp Woodland, Inc., and to confirm the purported election of the three petitioners as such directors and officers, the Studers and the seven others appeal from an order of the Supreme Court, Queens County, dated May 2, 1961, setting aside their election, and directing that a meeting be held by the corporation's members, consisting of the two Studers and the three petitioners, Sara Abramson, Rose Sidney and Regina Ferber, for the conduct of a new election of the directors of the corporation. Order affirmed, without costs. No opinion. The meeting and the new election shall be held on December 20, 1961, at 10 o'clock in the forenoon, at the corporation's office; and, at least 10 days prior to such date, the petitioners shall serve upon appellants a copy of the order to be entered hereon.
Under section 40 of the Membership Corporations Law, the three petitioners, together with appellants Norman Studer and Hannah Studer, became members of the corporation by signing the certificate of incorporation which was filed on February 6, 1942. Because of dissension among these five members, it was agreed in 1954 that petitioners sever all connection with the corporation on the payment of agreed sums as severance pay. Through error, the resignations of petitioners as directors, officers and employees only, were signed. Specific resignations as members were not signed. In our opinion, the intention of the parties was that the petitioners' severance from the corporation shall be in all their several capacities. This intention was effectuated by the documents actually signed. Proof that the severance in all capacities was the parties' intention in the documents actually signed, is the practical construction given to those documents by the petitioners' failure to assert or exercise their claimed rights as purported members from April, 1954 until May, 1960, when this proceeding was instituted — a period of more than six years.