App. Div.] Third Department, May, 1916. JOHN J. GALLOGLY and Others, as Syndicate Managers under and Pursuant to the Terms of a Certain Syndicate Agreement Dated December 15, 1908, Underwriting Bonds of the ' Hygienic Ice & Refrigerating Company," of Albany, N. Y., Respondents, v. ADELBERT WHITMORE, Appellant. 66 Third Department, May 3, 1916. Corporations - syndicate agreement — right of syndicate managers to recover subscriptions under Code Civil Procedure, § 449 — when error, if any, in reception of evidence removed by charge of the court. Where, by a syndicate agreement, each subscriber for himself agreed to purchase and take from the syndicate managers, composed of three of the subscribers, and the syndicate agreed to deliver bonds subscribed for and said managers were given the sole direction and management and entire conduct of the transactions and business of the syndicate, with full power to borrow money on notes and to pledge the bonds, the syndicate agreement and payments to be made by the subscribers as security and each subscriber guaranteed to any lender of money his proportionate amount of the loan, the syndicate managers are brought within the provisions of section 449 of the Code of Civil Procedure and have a right to maintain an action as trustees of an express trust to recover subscriptions where at the time of the trial they had possession of the syndicate agreement free of all liens. While there might be some question as to the reception of evidence as to what other members of the syndicate authorized or understood that a former member did, it was removed by a charge that if he made certain representations and promises as claimed by defendant they were binding upon the plaintiffs. APPEAL by the defendant, Adelbert Whitmore, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Albany on the 30th day of January, 1915, upon the verdict of a jury, and also from an order entered in said clerk's office on the same day denying defendant's motion for a new trial made upon the minutes. Ferris, Dannenberg & Ansbacher [Jacob Ansbacher of counsel], for the appellant. H. & W. A. Hendrickson [Arthur L. Andrews of counsel], for the respondents. LYON, J.: Third Department, May, 1916. [Vol. 172. In the year 1908 the Hygienic Ice and Refrigerating Company of the City of Albany, hereinafter referred to as the Ice Company, entered into an agreement to purchase the property of the Albany Refrigerating and Warehouse Company, and for that purpose proposed to issue its bonds in the sum of $300,000, secured by a mortgage upon the property of both companies. With this in view, and for the purpose of acquiring a fund of $100,000 with which to purchase such bonds to that amount, and to make a payment upon the purchase price, a syndicate was formed and a syndicate agreement executed. This agreement, which was executed by subscribers for bonds aggregating $100,000, named three of the subscribers as syndicate managers, designating them as parties of the first part, and the remaining subscribers thereto as parties of the second part. By this agreement, which is set forth in full in the complaint, each subscriber for himself agreed to purchase and take from the syndicate, and the syndicate agreed to deliver to the subscriber, the amount of bonds subscribed for, which the subscriber agreed to pay for in four installments, the last payment to be made January 1, 1910. The syndicate managers were given the sole direction and management and entire conduct of the transactions and business of the syndicate, and full power for the account of the syndicate to borrow by means of notes such sums as might be necessary, not exceeding $100,000, pledging as security therefor bonds not exceeding $133,000, as well as the syndicate agreement and the several payments to be made by the subscribers. The syndicate managers were given power to make calls upon the subscribers for their proportionate amounts of such subscriptions, and the subscribers agreed to pay in cash the sums so called for. In case of default the syndicate managers were given the right to sell the rights and interests of the defaulting subscriber in and under the agreement and bonds. Provision was also made that in case the loan made by the syndicate managers should not be paid when due the lender should have the right to sell at public auction any undelivered bonds sufficient to raise the amount unpaid. By such agreement each subscriber guaranteed to any lender of money upon the agreement the payment by such App. Div.] Third Department, May, 1916. subscriber of his proportionate amount of such loan, and that such obligation should be enforcible by the lender without regard to any defense against the Ice or Refrigerating Companies or any other corporation or person. The plaintiffs herein, with the exception of Burdick, who prior to the commencement of this action was substituted in the place of one Callan, who had resigned as a syndicate manager, were the original parties of the first part. The defendant was a subscriber for said bonds to the amount of $5,000. The syndicate managers in February, 1909, purchased $100,000 of said bonds from the Ice Company, paying therefor the full value in cash. This money the managers had borrowed from the National Commercial Bank of Albany upon their notes deposited with the bank, pledging as collateral for the payment of said notes said bonds so purchased. The defendant having neglected to pay all the installments as called for, a tender of $5,000 of the bonds was made to him by one of the parties of the first part October 21, 1910, and the payment of the purchase price demanded, which was refused. Thereupon this action was brought. The defenses mainly relied upon are that the signature of the defendant to the syndicate agreement was obtained by false representations, chief of which was that the defendant would not be compelled to take the bonds; that the agreement was usurious; that the syndicate managers were themselves liable for any indebtedness to the National Commercial Bank, and the subscribers to the agreement simply sureties, and that the syndicate managers were not entitled to maintain this action. The evidence taken upon the trial related chiefly to the issue as to whether the defendant was induced to sign the agreement with the understanding that he was not to be compelled to take the bonds, and whether the signature of the defendant was obtained through fraud. The jury rendered a verdict against the defendant for the full amount demanded, thereby setting at rest the defense that the defendant's signature was obtained by fraud and false representations. From the judgment entered upon such verdict, and from an order denying the defendant's motion for a new trial, this appeal was taken. Third Department, May, 1916. [Vol. 172. The principal point relied upon by the defendant in his argument before us was that if any cause of action existed it was not in favor of the plaintiffs, the syndicate managers, but was in favor of the National Commercial Bank of Albany, the lender of the money and the pledgee of the bonds. At the conclusion of plaintiff's evidence, as well as again at the close of the trial, the defendant moved to dismiss the complaint upon the ground that the syndicate managers were not the proper parties plaintiff, and that they had not the legal capacity to sue. If the plaintiffs had not the legal capacity to sue, that fact appeared upon the face of the complaint and the objection should have been taken by demurrer or answer. But passing this, I think the syndicate managers had legal capacity to sue, and were proper parties plaintiff. This conclusion would seem to follow from the agreement itself. While perhaps it does not contain a statement expressly to that effect, it was apparently the intention of all the parties to the agreement that each subscriber should pay the amount of his subscription to the syndicate managers, who in turn should pay the same to the lender of the moneys used in purchasing the bonds, taking up bonds to the amount paid and delivering them to the subscriber. I think the plaintiffs are brought within the provisions of section 449 of the Code of Civil Procedure, and have the right to maintain the action as trustees of an express trust. Had the syndicate managers been in terms made the payees of the subscription their right to maintain the action would apparently be beyond question. (Presbyterian Society v. Beach, 74 N. Y. 72; Dunnigan v. Kathan, 56 Misc. Rep. 103; affd., 127 App. Div. 931.) However, in the 1st paragraph of the agreement each subscriber agrees to purchase and take from the syndicate, and the syndicate agrees to deliver, the amount of bonds paid for. The 4th, 5th and 6th paragraph are confirmatory of the powers contended for by the plaintiffs being vested in them. In the case of Davis v. Smith American Organ Co. (117 Mass. 456) the court held that an action could be maintained by an executive committee against a subscriber to a subscription contract to contribute towards any deficiency arising from carrying on an exposition—the manifest purpose of the agreement being to guarantee the committee against App. Div.] Third Department, May, 1916. any losses they might incur in carrying on a musical festival. To the same effect, Comstock v. Howd (15 Mich. 237). In the case at bar the subscribers do not promise to make payments of their subscriptions to the lender of the money with which the bonds have been purchased, but simply (clause 7): "Each subscriber hereby severally guarantees to the lender of any money upon this agreement, the payment of such a proportionate amount of principal and interest as the amount of his subscription shall bear to the amount of such loan." By the 6th paragraph of the agreement the lender is given the right in case any part of the loan and interest shall not be paid when due to sell at public auction any bonds of the remaining undelivered as may be necessary to raise the amount due. The intention seems to have been to limit the right of action of the lender against the subscribers to the sale of bonds and an action against the subscribers as a guarantor. While the syndicate agreement gave the plaintiffs the right to pledge the agreement as well as the bonds with the lender of money, the complaint does not allege that the agreement was so pledged, and the answer denies it. While the agreement appears to have been left at the bank with the bonds, no receipt seems to have been taken for it as was the case as to the bonds when they were returned to the syndicate managers. This would tend to indicate that the agreement was not pledged · but was simply left with the bank as proof if needed of the liability of the subscribers as guarantors. However, I do not regard it as material whether the agreement was pledged or not as it appears that on November 17, 1910, the bonds and syndicate agreement were returned to the syndicate managers, and other collateral substituted. The trial of this action was not had until November, 1914, so plainly the plaintiffs had the possession of the syndicate agreement free of all lien at the time of the trial and for practically four years preceding. Whether the agreement was pledged to the bank at the time the action was commenced it is not necessary for us to consider, even if material, as the question was not raised upon the trial, and there is no proof as to when the action was in fact commenced. It is recited on the 1st page of the record APP. DIV.-VOL. CLXXII. 25 |