Bennett, J.c.c. (temporarily assigned).
In this action plaintiff Albert C. Barclay, Jr., moves for a summary judgment which would in effect declare him a duly elected director of defendant The First National Bank of Hightstown. Defendant, on the other hand, demands summary judgment in its favor.
Factually, it is undisputed that plaintiff is a substantial stockholder of defendant bank, a national banking association with its principal office at Hightstown, New Jersey. In November 1962 plaintiff was permitted to examine the stock transfer books of defendant bank. Shortly thereafter he began to solicit proxies for the annual meeting to be held on January 8, 1963.
On December 31, 1962 Beatrice Gaskill, owner of 130 shares of the capital stock of defendant bank, appointed M. H. Hageman and F. W. Branford as her proxies to vote her shares at the annual meeting. On January 5, 1963 Miss Gaskill revoked the proxy previously given to Hageman and
Branford, and appointed plaintiff as her proxy to vote these shares. The proxy by which Miss Gaskill appointed plaintiff was undated.
On January 4, 1963 Mary Petterson, owner of 100 shares of the capital stock of defendant bank, appointed M. H. Hageman, and F. W. Branford as her proxies to vote her shares at the annual meeting. On January 5, 1963 Mrs. Petterson revoked the proxy previously given to Hageman and Branford, and appointed plaintiff as her proxy to vote these shares. This proxy was also undated.
At the annual meeting of defendant bank, held on January 8, 1963, the number of directors for the ensuing year was fixed at eight. The plaintiff and eight other stockholders were nominated as directors. Instructions as to the manner of voting were given by the attorney for the bank, George Gildea. All parties were told to mark their ballots, staple them to the appropriate proxies, and place them in the voting basket on the table at which the chairman and secretary of the meeting were seated. All proxies voted at the annual meeting, including those given the plaintiff by Miss Gaskill and Mrs. Petterson, were voted in this manner. No separate basket or special provision was made with respect to the method of voting or filing of proxies -- they were all voted in like manner. It is undisputed that the proxies voted in favor of the incumbent directors were filed with the cashier of the bank prior to the election, and that none voted in favor of Mr. Barclay was so filed.
Conflicting proxies were voted at the meeting, and the judges of election asked defendants' attorney for advice as to the method of resolving these conflicts. Defendants' attorney advised the judges to count undated proxies where no other proxy was submitted, but to count the dated proxies where both a dated and an undated proxy for the same shares had been voted. This method was followed by the judges and 8,480 votes cast on undated proxies were counted for plaintiff.
When all votes had been counted the judges of election announced that 11,440 votes had been cast for plaintiff and
13,255 votes for each of the incumbent directors. Plaintiff immediately challenged the election. The following day the cashier of the bank discovered that defendants' proxies from Miss Gaskill and Mrs. Petterson had been revoked by plaintiff's proxies. They were, therefore, withdrawn from consideration and presently benefit neither party to this suit. The final tabulation as shown in the "Certificate of Judges" allocates 11,440 votes to plaintiff and 13,025 votes to each of the eight remaining directors.
As a result of cumulative voting the 230 votes in dispute were worth 1,840 votes. Since this would be enough to elect ...