#### In the Matter of the Application of James J. Ennis, Respondent, for the Appointment of Appraisers, etc., v. The Federal Brewing Company, Appellant. In the Matter of the Application of Richard A. Rendigh, Respondent, for the Appointment of Appraisers, etc., v. The Federal Brewing Company, Appellant.

Second Department,

January 10, 1908.

Corporation — sale of; franchise — limitation of proceeding to'appraise stock. .

Section 33 of the Stock Corporation Law, providing that an application for an appraisal of the stock of a corporation which Sells its property and franchises " to another corporation, must be made within sixty days after the "meeting of stockholders at which the sale was authorized, only requires the notice of such application to be served w,ithin sixty days; the hearing itself may be hacl after that period has expired.

*692Appeal in each of the above-entitled actions by the defendant, The Federal Brewing Company, from respective orders of the Supreme Court, made at the Kings County Special Term and entered in the office of the cleric" of the county of Kings on the 12th day of July, 1907, respectively, appointing three persons to appraise the value of the petitioners’ stock in the appellant corporation.

*Thaddeus D. Fenneson,*for the appellant.

*Francis A. McCloskey,*for the respondents.

Gaynor, J.:

When a stock corporation sells and conveys its property.and franchise to another corporation, which may be done on consent of two thirds of its stockholders in meeting assembled, any objecting stockholder may “ within sixty days after such meeting apply to the Supreme-Court at any Special Term thereof held in the district in which the principal place of business of such corporation is situated, upon eight days’ notice to the corporation, for the appointment of three persons to appraise the value of such stock”, etc., *i. e.,*of his stock (Stock Corp. Law, sec. 33). In this case the stockholders’ meeting was held on April 27th, 1907. On June 20th following the respondent served on the appellant an eight days’ notice of such application. This notice named for the return, or hearing day June 28'th. The application was heard and granted on that day against the objection of the appellant that the respondent had not applied to the court within 60 days from the -said stockholders’ meeting. ' .

The notice of application was served within the said 60 days, but the hearing day named therein was 62 days after such meeting. Bid the respondent apply ” to the court within the 60 days in the meaning of the statute ? To answer in the negative would be to give a strict meaning to the statute which the draughtsman did not think of. lie did not have in mind that the actual hearing in court should be had within the 60 days, but only to limit the time of the stockholder’s right to ask for an appraisement to that time. And the statute will easily bear this interpretation, viz., the meaning of the draughitggjan. The proceeding for *693an appraisement is a special proceeding (Code Civ. Pro. sec. 3334), and the making of the application may be said to be begun when the proceeding is begun. In legal sense it. is begun then and ends at the hearing in court.

The.cases citéd in respect of the interpretation of section 254 of the Municipal Court Act are not binding on us, nor do they apply. The provision there may require a different construction to the provision.before us, but tliatit does.we do not decide.

The order should be affirmed.

Woodward, Rich and Miller, JJ.,. concurred; Hirschberg, P. J., not voting.

Order affirmed, with te.n dollars costs and disbursements.