Felbel v. Jackman

Per Curiam: This case presents directly the question whether the assignee for the benefit of creditors of a corporation can raise the question that a chattel mortgage made by that corporation to secure the payment [944] of a note was invalid, illegal and void for failure of compliance with the statute* that requires the consent of not less than two-thirds of the capital stock to such mortgage. It seems that this precise question has never been decided by the Court of Appeals (See Matter of Progressive Wall Paper Corp., 230 Fed. Rep. 171, 174, 176), and that the reasonings of other courts upon this question are not harmonious. For illustration we may cite Matter of Progressive Wall Paper Corp. (supra); Matter of Post & Davis Co. (219 Fed. Rep. 171); Matter of New York Economical Printing Co. (110 id. 514); State Bank of Williamson v. Fish (120 N. Y. Supp. 365); Market & Fulton Nat. Bank v. Jones (7 Misc. Rep. 207; affd., 90 Hun, 605). We affirmed the judgment. (See 183 App. Div. 938.) Upon this particular question, we considered Vail v. Hamilton (85 N. Y. 453); Lord v. Yonkers Fuel Gas Co. (99 id. 547); London Realty Co. v. Coleman Stable Co. (140 App. Div. 495); Glover v. Ehrlich (62 Misc. Rep. 251); Beebe v. Richmond Power Co. (13 id. 737, 742); Matter of Post & Davis Co. (supra); Atlantic Trust Co. v. Crystal Water Co. (72 App. Div. 539). We deem it advisable that we should certify that in our opinion a question of law is involved which ought to be reviewed by the Court of Appeals, as naturally the rule announced by that court would be applicable to litigations other than the ease at bar. Jenks, P. J., Putnam, Blaekmar and Kelly, JJ., concurred. Motion for leave to appeal to the Court of Appeals granted. Footnotes [*] See Stock Corp. Law (Consol. Laws, chap. 59; Laws of 1909, chap. 61), § 6.— [Rep.