In re Townshend

Per Curiam. We think that the learned court at special term was entirely correct in holding that the proxies which were rejected by the inspectors of election were sufficient in form to entitle their holders to vote. The only blank which appeared in the proxies was as to the day of the month. The-month itself and the. year were specified; also the hours between which the-election was to take place. The election itself was also referred to as “a new election of directors by the stockholders of the United States Cremation Company, Limited,” a phrase which was in precise accordance with the call for the election. The intention of the stockholders who signed such proxies was therefore unmistakable. They referred to the particular election in question, and they clearly intended to confer upon the persons specified in such proxies the right to vote for them at such particular election. They could not, at the-time they signed the proxies, have specified the day of the month, for the-reason that the day of the month had not then been fixed by the board of directors. But the fact that such an election was to take place in the month of June was understood, and the proxies were drawn with direct reference to such forthcoming election. We think that the persons to whom such proxies were delivered were even authorized under the circumstances to fill in the-blank with' regard to the day of the month, and that they might have done so at the moment when they tendered these proxies to the inspectors, and claimed the right to vote thereon. As it appears that the refusal to accept these proxies, and to permit the holders thereof to vote thereon, changed the result of the election, we think that the special term was right in directing a. new election to be held. The only other important question presented by the appellant is whether the court is powerless to grant this relief, because of the denial of a previous-application for similar relief. The appellant claims that by reason of such, denial the question with regard to these proxies was adjudicated adversely to-the view taken by the special term on the present application. It appears, however, that the previous application was made by but two stockholders, named Dreher and Zimmerman, who simply alleged in their petition that proxies for 200 shares of the stock of the company were rejected by the inspectors at such election “because the dale of meeting was omitted therefrom.” This petition was supported by the affidavit of one Berendsohn, who stated that “proxies for 200 shares were not counted, for the reason that said proxies did not contain the date of said meeting.” These were the only facts with regard to the proxies in question before the court on such previous-application; no proof upon the part of the defendants upon that point. Upon such facts the court held, and prdperly, that such proxies were invalid, for the reason that they did not appear to have reference to any particular election. For aught that appeared in such papers, neither the day of the month, nor the year, nor the character of the election was specified. The ruling of" the court was therefore in the nature of a dismissal of the complaint in an. ordinary action for lack of proof. The ruling, in substance, was that on the-facts presented by applicant the election could not be-set aside. On the present application, however, the form of the proxies was before the court, and the intent of the stockholders who signed such proxies was made manifest by proper and competent proof. It also appeared on the present application beyond question that the rejection of the vote under these proxies changed the result. But it is quite clear, apart from all other questions, that the order made-on the previous application was not res adjudica ta as to one at least of the present applicants,—Albert Blumenthal,—for the reason that he was not served with the papers, nor did he appear. He is one of the stockholders of' 907 the company, and, as such, he has a right to avail himself of the provision of the statute which confers upon the court jurisdiction to order a new election, and he cannot be deprived of that right by reason of any adjudication made in a proceeding to which he was not a party. It will not be necessary, therefore, to consider the question as to how far the granting or demal of a summary application in a special proceeding like the present is res adjudicates within the rules which govern in actions; and we rest our decision upon the precise facts of this application, namely, that the parties were not all the same in both applications, and that the denial of the motion on the first application amounted to nothing more than the dismissal of the complaint in an ordinary civil action for lack of proof with regard to some fact, which, if properly proved, would have entitled the plaintiff to relief. It follows that, as the proxies should have been received, and as the question is not res adjudicata, the order should be affirmed, with costs. All concur.