In the Matter of the Petition to Set Aside the Election of Fred G. Lemmerman as a Trustee of Kings County Savings Bank

In the Matter of the Petition to Set Aside the Election of Fred G. Lemmerman as a Trustee of Kings County Savings Bank. [MAJORITY] Order denying application to set aside the election of Lemmerman as trustee of Kings County Savings Bank, to adjudge and decree that three of the trustees of said bank had forfeited their offices as such trustees and that Schwartz was a duly elected trustee, and for other relief, affirmed, with ten dollars costs and disbursements. Section 32 of the General Corporation Law, under which the application is made, has to do with the regularity and legality of corporate elections. The relief prayed for by the petitioner, in our opinion, goes far beyond that contemplated by the statute authorizing these summary proceedings. The court is of opinion that, under the facts and circumstances of the ease, the question involved in the claim that the offices of three trustees were vacant and that, therefore, the trustees were incapable of voting, may not be determined in a proceeding under section 32 of the General Corporation Law, but must be determined by appropriate court action (Matter of Clarke, Inc., Nos. 1, 2, 186 App. Div. 216) or by action of the trustees under subdivision 1 of section 268 of the Banking Law. Kelly, P. J., Young, Kapper, Lazansky and Hagarty, JJ., concur.