The People of the State of New York, Respondent, v. The Westchester Traction Company, Appellant

The People of the State of New York, Respondent, v. The Westchester Traction Company, Appellant. Second Department, January 10, 1908. Pleading—supplemental complaint — insufficient affidavit—corporation — effect of judgment annulling charter. Leave to serve a supplemental complaint cannot be granted solely upon an affidavit of the plaintiff’s attorney stating that the action is “ for the forfeiture of the defendant’s franchise to operate a trolley system ” in a certain village, for there is no such action. An action to procure a judgment vacating the charter or annulling the existence "of a corporation brought under section 1798 of the Code of Civil Procedure does • not work a confiscation of its rights and property, these becoming vested in the’trustees in office at the time of corporate death. Appeal by the defendant, The Westchester Traction Company, from an order of the Supreme Court, made at the Westchester Special TePm and ‘ entered in the office of the clerk of the county of Westchester on the 3d day of September, 1907, granting the plaintiff’s motion for leave to serve a supplemental complaint. J. Aspinwall Hodge [Roy M. Robinson with him on the brief], for the appellant. Frank L. Young, for the respondent. [MAJORITY — Gaynor, J.:] Gaynor, J.: On a short affidavit by the plaintiff’s attorney that this action is “for the forfeiture of the defendant’s franchise to operate a trolley , system in the village of Ossining ”, the Snecial Term granted the plaintiff’s motion to serve a supplemental complaint. The original complaint was not read on the motion,; and is not in the present record. There" is no suchaction known as that described in the'said affidavit. Section 1798 of the Code of Civil Procedure only authorises an action “to procure a judgment vacating the 'charter or annulling the existence of the corporation and.not to forfeit or take away from it any of its rights or property; and even if its life be taken away, its rights and property are'not confiscated, but become vested in its trustees in . office at the time of its death (People v. O'Brien, 111 N. Y. 1). The order should be reversed. Woodwabd, Jenks, Eich and Millee, JJ.., concurred. Order reversed, with ten dollars costs and disbursements.