Opinion
January, 1933.
Present — Lazansky, P.J., Kapper, Carswell, Scudder and Davis, JJ.
Judgment unanimously affirmed, with costs. The stockholders' consent to mortgage appears to have been executed at the same time as the mortgage itself. There was evidence which, in the circumstances, permitted a finding that plaintiff's husband and his son Morris and his daughter Martha were present in the attorney's office when the bond and mortgage as well as the stockholders' consent were executed. In the absence of any explanation from Morris, and considering the close family relationship existing the dwelling in the same property of Jacob Smith, Martha Frank and Morris Smith, and the gift to them of their portion of the stock formerly owned by Jacob, a fair inference arises of consent by Morris to the mortgaging of the dwelling house which the corporation owned (and which was its only asset), with knowledge by him of the purpose to secure the plaintiff for her loan. It is undisputed that Jacob and Martha consented to the execution of the mortgage. With the consent of Morris there is presented over two-thirds of the stock consenting. No creditor is involved and no stockholder complains.