CASES IN CHANCERY.

BERRY V. CROSS and others.

A voluntary joint stock association was formed for owning and conducting ferries. By the articles, seven trustees were to be elected, who were to be vested with the property, hold it for the stockholders, and be liable for the debts; and every vacancy among the trustees, by death, resignation, or otherwise, was to be filled at the annual meeting. B. was elected one of the trustees and acted. A., another trustee, resigned, whereupon an election of trustees was ordered and notice given, and an election held, at which seven were chosen, displacing B. B. acted as a trustee in appointing inspectors of election, and at the election voted for seven, including all the old trustees except A. On B.'s being excluded from the further management of the association, he filed a bill for an account and dissolution.

Held, that his acts respecting the election, did not effect a resignation of his office, and that there was no vacancy to be filled except that made by A., and that B. was still a trustee.

May 6; August 4, 1845.

THE bill in this cause was filed on the 25th of November, 1843, for the dissolution of a partnership existing between the complainant, Berry, and the defendants, in certain ferries between the city of New York and the village of Williamsburgh,—and for an account of the joint concerns.

The bill stated that on the 15th of May, 1841, the parties formed themselves into a voluntary association under the name of The Williamsburgh and New York Union Ferry Association, by articles of agreement which were signed by the associates, and which were set forth at large in the bill. These articles provided for a capital stock of fifty thousand dollars, divided into five hundred equal shares. The object was declared to be the establishment and maintenance of ferries between New VOL. III.

1.

Berry v. Cross.

York and Williamsburgh, landing at designated points. The property of the association was to be vested in seven trustees, who were to be elected by the stockholders from among their number. The agreement then contained this clause; "And every vacancy among said trustees by death, resignation or otherwise, shall be filled at the annual meeting hereinafter provided for." It further provided that the trustees, or their survivors or successors, should hold the real and personal property of the association for the benefit of the stockholders, &c. By the fifth article there was to be a stated meeting of the stockholders once in every year, on the first Monday of, (which blank was never filled.) The agreement recited that the trustees had the custody and possession of the estate of the association, to indemnify them for all their engagements; and it therefore declared that the stockholders were not to be liable for any contracts made by the trustees.

The bill further stated, that at the first election, regularly held on the third day of July, 1841, the complainant, the defendant, John A. Cross, with Abraham Boerum, and four others, were elected trustees of the association. That the trustees soon thereafter obtained the requisite lease of the ferries from the corporation of the city of New York, and on the first day of May, 1842, entered into the full possession and control of the ferries, and contracted a large amount of debts, for which the complainant became personally liable, a great part of which remained outstanding. That the complainant has never resigned his office as trustee. That at a regular meeting of the trustees held June 28th, 1843, it was resolved that an election of trustees of the association be held on the 19th day of July ensuing; but on the first day of July at a special meeting, that resolution was rescinded, and it was then resolved that the election be held on the first Monday of August. At a special meeting on the 20th of July, notices of the election were directed to be published. On the second of August there was a special meeting of the trustees, when inspectors of the election were appointed, and another on the fifth, when the place of one of those inspectors was filled. The complainant had been informed the election was to be held