There can be no doubt that the corporate records in which the resolutions of the directors and stockholders are contained are in themselves proof of the regularity of the transactions recorded therein and that the defendants have the burden of meeting that proof. Sigua Iron Co. v. Brown, 171 N.Y. 488-496, 64 N.E. 194; Matter of Mandelbaum, 80 Misc. 475-477, 141 N.Y.S. 319, affirmed, 159 App. Div. 909, 144 N.Y.S. 1128. Proxies relied on at the meeting are entitled to the same presumption. People ex rel. Chritzman v. Crossley, 69 Ill. 195; Gentry-Futch Co. v. Gentry, 90 Fla. 595, 106 So. 473. The defendants have attempted to rebut by offering evidence in order to show that the signatures on the proxies running to Kennedy, Feely and Sampson were signed without authority, at least to an extent sufficient to invalidate the two-thirds vote.
See Pullman v. Upton, 96 U.S. 328, 330-31 (1877) (Mem.) (holder of stock, who possesses stock as collateral security, is liable to corporation for unpaid portion of share price); Webster v. Upton, 91 U.S. 65, 70 (1875) (Mem.) ("We think, therefore, the transferee of stock in an incorporated company is liable for calls made after he has been accepted by the company as a stockholder, and his name has been registered on the stock books as a corporator; and, being thus liable, there is an implied promise that he will pay calls made while he continues the owner."). The common law imposed upon the shareholder an implied promise to satisfy any unpaid portion of the stock purchase price upon the corporation's demand. See Sigua Iron Co. v. Brown, 171 N.Y. 488, 502-04, 64 N.E. 194, 198-99 (1902) (shareholder responsible for unpaid portion of share price because of "implied promise" inherent in becoming shareholder). Additionally, at common law, a transferee of unpaid shares became liable to the corporation for the unpaid portion of the subscription price, even if the transferee was not aware that the corporation was still owed money for the shares.
We agree. The New York courts have consistently ruled that a temporary receiver pendente lite does not obtain title to the property, but has only a right of possession. Keeney v. Home Ins. Co., 71 N.Y. 396, 27 Am.Rep. 60; Herring v. New York, L.E. W.R. Co., 105 N.Y. 340, 12 N.E. 763; Decker v. Gardner, 124 N.Y. 334, 26 N.E. 814, 11 L.R.A. 480; Stokes v Hoffman House, 167 N.Y. 554, 60 N.E. 667, 53 L.R.A. 870; Sigua Iron Co. v. Brown, 171 N.Y. 488, 64 N.E. 194; Mutual Brewing Co. v. New York College Point Ferry Co., 16 App. Div. 149, 45 N.Y.S. 101; In re French, 181 App. Div. 719, 168 N.Y.S. 988, affirmed 224 N.Y. 555, 120 N.E. 863. See N Y General Corporation Law, Consol.Laws, c. 23, §§ 162, 163, 168. Since these precedents show such general understanding in New York of the restricted rights of a temporary receiver, we should look for clear statutory language to disclose a different intent for this one situation here. None is to be found in § 977-b of the N.Y. Civil Practice Act. Nowhere in that statute is the temporary receiver in terms given the title, as appellant contends.
Libman-Spanjer Corp. v. Royal Hall, Inc., 146 Misc. 348, 263 N.Y.S. 98; 4 Remington on Bankruptcy (5th ed.) § 1613. Sigua Iron Co. v. Brown, 171 N.Y. 488, 494, 64 N.E. 164, 196. See also Decker v. Gardner, 124 N.Y. 334, 26 N.E. 814, 11 L.R.A. 480; Cohen v. Sherman, 279 A.D. 939, 111 N.Y.S.2d 439.
In Re C. Moench Son Co., 130 F. 685, page 688 (C.C.A.2d) Judge Lacombe said: "As to the proposition that the proceedings should be dismissed on any theory of collusion or estoppel, and that the appointment of temporary receivers deprived the board of directors of their power to make the written admission, we think it unnecessary to add anything to the opinion of the District Judge. In Sigua Iron Co. v. Brown, 171 N.Y. 494, 64 N.E. 194, cited in that opinion, the court says: `The appointment of a temporary receiver does not dissolve a corporation, nor restrain the exercise of its corporate powers. His functions are limited to the care and preservation of the property committed to his charge.
As to testimony touching the truth of an entry in the corporation minutes bearing on the case, we do not understand that entries in corporate books are more than prima facie evidence of statements therein contained. Turnbull v. Payson, 95 U.S. 418; Wood v. Bank, 9 Cowen 194, 205; Signa IronCo. v. Brown, 171 N.Y. 488, 497. Such evidence is in the nature of things open to contradiction.
They show that the complaining witness was a stockholder of the corporation, and they show the transactions of the corporation by its board of directors. The books of a corporation are admissible for such purpose without proof of the correctness of the entries by the party actually making them. ( Sigua Iron Co. v. Brown, 171 N.Y. 488.) Secondary evidence of the contents of the books of account was admitted for the purpose of explaining the auditor's report which was based upon them and which was properly admitted in evidence, because the defendant had to some extent adopted that report when he submitted it to the grand jury. Even if the reliability of the entries is not established the fact that the books contain these entries may have independent relevancy.
The jury resolved this issue of fact in favor of the plaintiff, and the Appellate Division had no power as a matter of law ( McKellar v. Am. Synthetic Dyes, 229 N.Y. 106) to reverse the judgment entered on such verdict, for the obvious reason that the defendant, by not making a motion at the close of the evidence to dismiss the complaint, or for the direction of a verdict in his favor, thereby, in legal effect, admitted there was such fact to be passed upon and consented that the same be submitted to the jury. There are numerous authorities to this effect, only a few of which it is necessary to cite: Seeman v. Levine ( 205 N.Y. 514) ; Sigua Iron Co. v. Brown ( 171 N.Y. 488); Wangner v. Grimm ( 169 N.Y. 421); Hopkins v. Clark ( 158 N.Y. 299); City of Buffalo v. N.Y., L.E. W.R.R. Co. ( 152 N.Y. 276). It follows, therefore, that on the record in the Appellate Division no questions of law were presented other than those raised by the exceptions to the ruling upon evidence.
On the contrary, the trial court submitted to the jury all the questions of fact involved in the controversy, and the defendant not only did not take any exception to this submission, but he specifically requested the trial court to give to the jury special instructions for their guidance in the consideration of the proposition whether the defendant did assault the plaintiff as claimed by her. Under such circumstances it is well settled that the defendant waived any exception which he took to the denial of his motion at the close of the plaintiff's case, and is not in a position to argue the proposition of lack of evidence as he seeks to do. ( Wangner v. Grimm, 169 N.Y. 421; Sigua Iron Co. v. Brown, 171 N.Y. 488, 505.) The judgment should be affirmed, with costs.
Each of the parties stipulated that the court might direct the judgment in the action that it deem the law required, and they each thereby assented to the court deciding any and every question of fact that was necessary in a decision of the action. ( Sigua Iron Co. v. Brown, 171 N.Y. 488; Westervelt v. Phelps, 171 N.Y. 212; Sheldon v. George, 132 App. Div. 470.) We think the evidence as shown by the record was sufficient on which to base a finding that the plaintiff never took actual possession of the land; was not guilty of laches in failing to record his deeds and the other necessary findings on which to direct judgment against the defendant for damages arising by reason of his failure to perform the covenants that we have quoted.