ultra vires doctrine in New York

1914In Schuyler National Bank v. Gadsden, 191 U. S. 451 , 24 Sup. Ct. 129, 48 L.

1914In Schuyler National Bank v. Gadsden, 191 U. S. 451 , 24 Sup. Ct. 129, 48 L.

1911Close v. Potter, 155 N. Y. 145 ; Leighton v. Leighton Lea Assn., 146 App. Div. 255 ; Ward v. Joslin, 186 U. S. 142 .

1911(Close v. Potter, 155 N. Y. 145, 155 ; Ward v. Joslin, 186 U. S. 142, 151, 152 .) However that may be, I think.it unnecessary to decide that question.

1895In Kent. v. Mining Co., 78 N. Y. 159 , the court say, at page 185: “In the application of the doctrine of ultra vires, it is to be borne in mind that it has two phases: One where the public is concerned; one where the question is between the corporate body and the stockholders in it, or between it and its stockholders, and third parties dealing with it, and through it with them.

1892This case falls within the principle stated in Kent v. Quicksilver Mining Co. ( 78 N. Y. 159 ), where it was said: “ In the application of the doctrine of ultra vires, it is to be borne in mind that it has two phases: one where the public is concerned ; one where the question is between the corporate body and the stockholders in it, or between it and its stockholders, and third parties dealing with it and through it with them.

2025Specifically, defendants argued that the claim should fail because "[t]he complaint . . . does not show by any affirmative declarations, any statutory limitation of Delaware, or chartered limitation, or express ruling of the Delaware Courts which would have made the execution of Contract 'B' beyond and without the scope of the powers and purposes with which the Old Dominion Steamship Company of Delaware was formed" (brief for defendants-appellants in Leslie v Lorillard , 110 NY 519 [1888], 55).

2025Specifically, defendants argued that the claim should fail because "[t]he complaint . . . does not show by any affirmative declarations, any statutory limitation of Delaware, or chartered limitation, or express ruling of the Delaware Courts which would have made the execution of Contract 'B' beyond and without the scope of the powers and purposes with which the Old Dominion Steamship Company of Delaware was formed" (brief for defendants-appellants in Leslie v Lorillard , 110 NY 519 [1888], 55).

2000To the extent, if any, an ultra vires defense is cognizable under these circumstances (see, Business Corporation Law § 203), the corporate defendant’s execution of the agreement seeking to bring about the disposition of the lease held by its wholly-owned subsidiary was in furtherance of the corporate defendant’s own corporate purposes (cf, Chester Airport v Aeroflex Corp., 37 Misc 2d 145, 148-149 , mod on other grounds 18 AD2d 998 ), and was thus authorized by Business Corporation Law § 202 (a) (7).

2000To the extent, if any, an ultra vires defense is cognizable under these circumstances (see, Business Corporation Law § 203), the corporate defendant’s execution of the agreement seeking to bring about the disposition of the lease held by its wholly-owned subsidiary was in furtherance of the corporate defendant’s own corporate purposes (cf, Chester Airport v Aeroflex Corp., 37 Misc 2d 145, 148-149 , mod on other grounds 18 AD2d 998 ), and was thus authorized by Business Corporation Law § 202 (a) (7).

1992Further plaintiff has failed to make a showing of State action such as would warrant a due process claim (Blum v Yaretsky, 457 US 991 ; Matter of Smallwood v Warren, 50 AD2d 598 ) or of a contract combination or conspiracy among independent entities engaged in commercial or business pursuits that caused a competitive injury in a relevant market within this State such as to support a Donnelly Act claim (see, e.g., Associates Capital Servs.

1992Further plaintiff has failed to make a showing of State action such as would warrant a due process claim (Blum v Yaretsky, 457 US 991 ; Matter of Smallwood v Warren, 50 AD2d 598 ) or of a contract combination or conspiracy among independent entities engaged in commercial or business pursuits that caused a competitive injury in a relevant market within this State such as to support a Donnelly Act claim (see, e.g., Associates Capital Servs.

1962Although the fact that the ultra vires defense was not pleaded would not prevent its use in opposition to a motion for summary judgment-‘ ‘ the decisive consideration is the existence of conflicting issues of fact rather than the sufficiency of the pleadings considered without the supporting affidavits ” (Werfel v. Zivnostenska Banka, 287 N. Y. 91, 93 )-facts to show the propriety of its use are not revealed in the defendants’ papers.

1911Close v. Potter, 155 N. Y. 145 ; Leighton v. Leighton Lea Assn., 146 App. Div. 255 ; Ward v. Joslin, 186 U. S. 142 .

1908Assn., 172 id. 508, 517; Eastern Building (& Loan Assn. v. Williamson, 189 U. S. 122, 128 ; Bath Cas Light Co. v. Claffy, 151 N. Y. 24 .) The general principle is well stated in 78 Bew York {supra), at page 185 : “ In the application of the doctrine of ultra vires, it is to be borne in mind that it has two phases : one where the public is concerned ; one where the question is between the corporate" body and the stockholders in it, or between it and its stockholders, and third parties dealing with it and through it with them.

1908Assn., 172 id. 508, 517; Eastern Building (& Loan Assn. v. Williamson, 189 U. S. 122, 128 ; Bath Cas Light Co. v. Claffy, 151 N. Y. 24 .) The general principle is well stated in 78 Bew York {supra), at page 185 : “ In the application of the doctrine of ultra vires, it is to be borne in mind that it has two phases : one where the public is concerned ; one where the question is between the corporate" body and the stockholders in it, or between it and its stockholders, and third parties dealing with it and through it with them.

1885It should never be applied where it will defeat the ends of justice if such a result can be avoided.” (Whitney Arms Co. v. Barlow, 63 N. Y., 62 .) In Wadsworth v. Wendell, a soldier was entitled to lot 7 in Solon.