Maurice J. Katz, Appellant, v. The H. & H. Manufacturing Company, Respondent

Maurice J. Katz, Appellant, v. The H. & H. Manufacturing Company, Respondent. (Argued January 10, 1906; decided January 30, 1906.) Katz v. H. & H. Manufacturing Co., 109 App. Div. 49, affirmed. Appeal, by permission, from an order of the. Appellate Division of the.Supreme Court in the first judicial department, entered December 12, 1905, which reversed an order of Special Term continuing a preliminary injunction to restrain the election of directors of the defendant company. The following questions were certified :. , “(1) The by-laws of the defendant'. corporation provide that the directors shall be five in number, and also, provide that£ stockholders by a, vote of ninety per cent of the stock issued and outstanding may at any regular or special meeting, alter or amend’ the by-laws.'" A meeting was. duly called for the purpose of adopting a resolution to decrease the number of directors from five to four and to amend the provision of the by-laws by substituting the word ‘ four ’ for the word ‘five’ with respect to the number of directors." -The holders' and ■ owners of more' than, fifty per cent -of the issued and outstanding .stock of the defendant, but less than1- niuéty' per cent of such stock, duly voted voted in favor of this resolution. “ Was it lawful for the company to reduce its number of directors by a vote of the holders of more than, fifty -per cent but less than ninety per cent of the issued and outstanding stock of the defendant where all the statutory requirements have been complied with ? “ (2) Is it lawful for a corporation to provide in its by-laws that a vote of the holders of ninety per cent (90%) of its issued and outstanding stock shall be required in order to change the number of directors, notwithstanding section 21 of the Stock Corporation Law ? ” . ■ Herbert R. Limburger for appellant. William H. Hirsh for respondent. [MAJORITY] Order affirmed, with costs. ■ First question certified answered in the affirmative, second in the negative; no opinion. Concur: Cullen, Ch. J., O’Brien, Haight, Vann, Werner, Willard Bartlett and Hisoock, JJ.