In the Matter of the Application for a Voluntary Dissolution of E. R. Strong Company, Respondent. Charles S. Day, a Creditor, Appellant

In the Matter of the Application for a Voluntary Dissolution of E. R. Strong Company, Respondent. Charles S. Day, a Creditor, Appellant. (No. 1.) Second Department, October 16, 1908. Corporation—voluntary dissolution—waiver to notice by attorney-general. Where the attorney-general has not been served with the papers in a'proceeding for the voluntary dissolution of a corporation, as required by section-8 of chapter 378 of the Laws of 1883, he cannot, after a motion made, validate the proceeding or vest the court with jurisdiction by admitting due-and timely service of notice.of motion or by signing waivers antedating the order; It seems, "however,, that he can confer jurisdiction by waiving service -before the motion is brought to a hearing. . Appeal by Charles S. Day, a creditor, from an order of the Supreme Court, made at the Kings County Special Term and entered in. the office of the clerk of the county of Kings on the 15th day of May; .1908, as resettled by an order entered on the 1st day of June, 1908, among other things, denying the appellant’s motion to vacate an order requiring all persons interested in the E. R. Strong Company to show cause before a referee therein named why the said corporation should not be dissolved on the ground of the failure to give to the Attorney-General notice of the application for said order. .Paul Armitage, for the appellant. Hugo Hirsh,, for the respondent. [MAJORITY — Rich, J.:] Rich, J.: Section 8 of chapter 378 of the Laws: of 1883 provides that “ A copy of all motions and all motion papers,, and a copy of any other application to the court, together with a copy of the. order or judgment to be proposed thereon to t-lie court, in every action or proceeding now pending for the dissolution' of a corporation or a distribution of its assets, or which shall hereafter be commenced for such purpose, shall, in all-- cases, be served on the Attorney-General, in the same manner as provided by law for the service of papers on attorneys who have ajapéared in actions, whether the applications but for this law would be ex parte ox upon notice, and no order or judgment granted shall vary in any material respect from the relief specified in such copy or order, unless the Attorney-General shall appear on the return day and have been heard in rela ■ tion thereto; and any order or judgment granted in any action or proceeding aforesaid, without such service of such papers upon the Attorney-General, shall be void * * ' In discussing the section under consideration in People v. Seneca Lake Grape & Wine Co. (52 Hun, 174, 180), Presiding Justice Barker said, “the purpose of the statute is to require notice to be given to the Attorney-General of the time and place when the petition will be presented to the court, that he may be present and be heard upon the initiatory application as well as all the other proceedings to be had in. the matter; and unless service of such notice is waived, the court has no jurisdiction to entertain the proceeding, and, as the statute has declared, the order is void.” No notice of the application for the show cause order, or of any of the subsequent proceedings, was given to the Attorney-General. It appears, however, that subsequent to the entry of the show cause order and after the motion was made in this proceeding, the Attorney-General admitted due and timely service of the notice of motion and signed waivers antedating the order. The date is unimportant; the question is, had the Attorney-General the power to validate the proceeding ? It is undoubtedly true that he might have conferred jurisdiction by waiving service of the paper before the motion was brought on for hearing, but this was not done, and 1 am of the opinion that he was without authority to validate the order by appearing after it had been made, and that the court was without jurisdiction to entertain the proceeding, and that the order made therein and proceedings thereunder were void ; the order was binding upon no one; it was an absolute nullity, and there is no power in the Attorney-General to validate it. The order must be reversed, with ten dollars costs and disbursements, and motion granted. Jenks, Hooker, Gaynor and Miller, JJ., concurred: Order reversed, with ten dollars costs and disbursements, and motion granted.