Statement of case. Plaintiff was in, and entitled to, the lawful possession of the apartment in question. The eviction was illegal. Ejectment will lie to recover possession. (Bristor v. Burr, 120 N. Y. 427, 433; In re L. I. R. R. Co., 19 Wend. 37; Dater v. T., etc., Co., 2 Hill, 629; Leprell v. Kleinschmidt, 112 N. Y. 364; Code Civ. Pro. § 3343; Ellicott v. Mosier, 7 N. Y. 201.) The direction of a verdict for defendant was error. (Bagley v. Bowe, 105 N. Y. 171; Clemence v. City of Auburn, 66 id. 334; Stone v. Flower, 47 id. 556.) The exclusion of the evidence to which plaintiff excepted, of what Mr. Hurbert, the agent of the company in the sale of its stock and a director, told the plaintiff as intended purchaser as to the ownership of the apartment in question was error. (Beckford v. Menier, 107 N. Y. 490; Leslie v. K. Ins. Co., 63 id. 27; Chadwick v. Farmer, 69 id. 404; Mayer v. Dean, 15 id. 556.) The admission of the resolutions of the meeting of the stockholders of January 29, 1884, on objection as incompetent and immaterial, was error. (Angell & Ames on Corp. [11th ed.] $489, 492; People v. Batchelor, 22 N. Y. 128; Pearsall v. W. U. T. Co., 124 id. 256; Rudd v. Robinson, 126 id. 113; Newhall v. Appleton, 124 id. 668.) The admission of the lease on objection and exception as incompetent and immaterial was error. (Brown v. N. Y. C. & H. R. R. R. Co., 44 N. Y. 76; P. Bank v. S. A. R. C. Church, 109 id. 512.) The conclusion of the court below that the original contract was modified was error. (Angell & Ames on Corp. [11th ed.] § 233; Moss v. Averill, 10 N. Y. 449; Sheehan v. Hamilton, 4 Abb. Ct. App. Dec. 211; Phillips v. Gorham, 17 N. Y. 270; Wallace v. Walsh, 125 id. 26; Barr v. N. Y., L. E. & W. R. R. Co., Id. 263.) Plaintiff's assignor could not, after the sale of the stock, do anything which in law or equity would affect plaintiff's rights. (Johnson v. Underhill, 52 N. Y. 203; Campbell v. A. Z. Co., 122 id. 455.) Plaintiff did not ratify, consent or agree to a departure from or modification of the original contract. (Smith v. Kidd, 68 N. Y. 130, 142; King v. Mackellar, 109 id. 215, 223; Baldwin v. Burrows, 47 id. 199; Opinion of the Court, per FINCH, J. Smith v. Tracy, 36 id. 79; Williams v. W. U. T. Co., 93 id. 162; Paige v. Willett, 38 N. Y. 28, 31; Riggs v. C. M. Ins. Co., 125 id. 7, 11; Baldwin v. Short, Id. 553, 558; Code Civ. Pro. § 500; Linton v. U. F. Co., 124 N. Y. 533; Swift v. S. I. R. T. Co., 123 id. 645; Hart v. H. R. B. Co., 80 id. 622; Hawthorne v. Hodges, 28 id. 486; Brownell v. Winne, 29 id. 400; Goodsell v. W. U. T. Co., 109 id. 147; Outwater v. Moore, 124 id. 66.) William H. Shepard for respondent. The subscription and prospectus did not confer upon the holder of stock the right to an apartment free of rent. (1 R. S. chap. 18, § 2; L. 0. S. R. R. Co. v. Curtiss, 80 N. Y. 219.) The plaintiff, to succeed in this action, must establish a legal title. Proof of an equitable title is not sufficient to support the action of ejectment. (Risley v. Rice, 40 Hun, 586; Peck v. Newton, 46 Barb. 173; S. F. M. Co. v. Belcher, 49 Cal. 655; Ecles v. Day, 4 Conn. 96.) The plaintiff being in possession as a mere licensee or tenant at will, could not assign or transfer his possession, and, by underletting the apartment, lost all possession therein, so far as the defendant is concerned, and it had the right to resume possession. (People v. Field, 1 Lans. 238; Wright v. Moore, 21 Wend. 233; Pierce v. Tuttle, 53 Barb. 166; Rockland v. Schanck, 43 N. Y. 448.) But even if the entry were unlawful, since the defendant has the legal title, it may defend its possession in this action. (Jackson v. Farmer, 9 Wend. 201.) No error was committed in the exclusion or admission of evidence, and the plaintiff was not prejudiced thereby. (Olcott v. T. R. R. Co., 27 N. Y. 546.) FINCH, J. The decisive inquiry on this appeal is whether the plaintiff was bound by the by-laws of the corporation, and so by the action of the majority of its stockholders. The "Chelsea" became a corporation and was organized as such under chapter 589 of the Laws of 1881. That act permits any three or more persons to organize themselves into a corporation "for the purpose of purchasing, acquiring, maintaining and improving real estate for residences, homesteads Opinion of the Court, per FINCH, J. and apartment houses, to be leased and conducted by the cor poration so formed," and authorizes it to distribute its property and the rents, income and proceeds thereof among its members and stockholders "in such manner as shall be deter mined by its by-laws." Ordinarily, the business of a corpora tion is conducted by and placed within the control of its board of directors or trustees, but in the present case an important limitation was attached to their authority by the by-laws which were adopted the day following the formal organization of the company. Article 9 provides that "all questions as to the purchasing of land, the character and style of building to be erected thereupon, as to how and to whom and at what rent the several apartments shall be leased, and as to the apportioning and distributing of the said apartments among the stockholders shall be decided by the vote of the majority of the stock, and not otherwise." Authority to decide these questions, which were vital to the success and prosperity of the common enterprise, must necessarily rest somewhere, and the statute authorized the corporation to settle that for itself through the operation of its by-laws, and these conferred the authority not upon the trustees, but upon the majority of the stockholders. Notwithstanding that fact, the board of trustees took it upon themselves to adopt the prospectus which had previously been issued. That contemplated an outlay of five hundred and eighty thousand dollars, one-half of which was to be obtained by mortgage of the property, and the other half by sales of stock. The prospectus dealt wholly in estimates, and these, as is generally the fact, were hopeful and flattering much beyond the realized truth. A subscription for seventy shares, costing thirty-five hundred dollars, it was asserted, would entitle the subscriber to certain apartments on any of the floors without additional rent. But all this was estimate merely, and whoever bought the stock must necessarily take it subject to the authorized control and the emergencies which the actual construction should develop. One of the subscribers was Cruikshank, who acted for Van Brunt, and to the latter, in virtue of his seventy shares, was assigned Opinion of the Court, per FINCH, J. the apartment in controversy, now numbered 21, and whose rights afterwards passed to the plaintiff. But before the latter purchased, great changes in the plan were adopted, which at once made the results outlined by the prospectus utterly impossible. These changes made the building thoroughly, instead of partially, fire-proof, added an additional story, and almost exactly doubled the contemplated expenditure. The plaintiff was present at the stockholders' meeting at which the changes were made, "representing his wife," and favored them all. The by-laws were read at that meeting and in his presence. He, therefore, perfectly understood the situation and knew before he purchased the seventy shares of Van Brunt that the estimates of the prospectus had become illusory by reason of the added expenditure. Nevertheless, he bought the stock and went into possession of the apartments assigned. But he took that possession subject to the action of the majority of the stockholders as provided by the by-laws. At a stockholders' meeting held in January, 1884, which was after plaintiff's purchase of Van Brunt, but before the transfer of the stock to him upon the books of the corporation, it was unanimously determined, in view of the increased cost of the structure and the added burden of the mortgage debt, to increase the capital stock to five hundred thousand dollars and to charge to the stockholders as rent for their apartments ten per cent upon the par of their stock. The increased capital was distributed pro rata without additional cost to the stockholders and the plaintiff, when he took his stock certificate, received the sixty-seven new shares and became and remains the owner of one hundred and thirty-seven instead of seventy shares. He rented the apartment assigned to him for eight hundred and fifty dollars, thus receiving as interest upon his original investment about twenty-four per cent, and utterly refused to pay the rent or accept a lease as tendered. When his tenant vacated the apartment, the corporation resumed possession of it and excluded him from it after having many times demanded the rent and been refused. Statement of case. I agree with the trial judge that the plaintiff had no legal title to his apartment, but an equitable right to it upon the reasonable conditions imposed by the majority of the stockholders under the authority of the by-laws. By rejecting those conditions, he lost his right to the apartment assigned, and has no title to it upon which he can recover the possession. The original prospectus was not an element of a completed contract, but a tentative plan, subject by the very law of the corporate organization to such material modifications as the necessities of the enterprise should, require and a majority of the associates direct. It is shown that the certificate of stock is only such, and has no connection with any specific apartment. It simply confers upon the holder the rights of a stockholder and those rights are subordinate to the law of the corporate organization. This view was that adopted by the courts below and it seems to us correct. The judgment should be affirmed, with costs. All concur. Judgment affirmed. THE PEOPLE ex rel. MORRIS A. YOUNG, Respondent, v. CHARLES STRAIGHT, Clerk of the Village of Wellsburg, Appellant. By the charter of the village of Wellsburg (Chap. 291, Laws of 1870, as amended by chap. 68, Laws of 1887, and chap. 172, Laws of 1888), every person elected or appointed to office is required to take and file with the clerk of the village an oath of office. By an ordinance of the board of trustees authority was conferred upon said clerk to administer such oath. A majority of the inspectors of election signed a statement as to the results of an annual election for village officers, which was filed with the clerk; this showed that there were one hundred and thirty-six ballots cast for president, of which sixty-six were cast for the relator, "Morris A. Young," one for "Morris Young," one for "M. A. Young," one was defective, and one blank. Defendant, the village clerk, when applied to for that purpose, refused to administer the oath of office to the relator, claiming that he was not legally elected. Held, that a mandamus was properly granted, requiring defendant to perform this duty; that he was not called upon to decide as to the legality of the applicant's elec-tion; but, in his ministerial capacity, was obliged to administer the oath, SICKELS-VOL. LXXXIII. 69 |