B-143052 September 15, 1961

B-143052 September 15, 1961

Mr. Mathaniel Greenbaum Counselor at Law 66 Court Street Brooklyn 1, New York

Dear Mr. Greenbaum:

This refers to your letter of August 23, 1961, to the General Accounting Office concerning the distribution of an award made to the Vanderbilt Chemical Manufacturing Corporation by the Foreign Claims Settlement Commission of the United States. This matte has been the subject of considerable correspondence between our office and Mr. Clyde W. Cook of Los Angeles, California, who has made application for payment to him in the name of the corporation as its Managing Director. You say that you have been furnished copies of all of this correspondence and that you have been retained by the heirs of one Clarence W. Embrey, who was a president of the Corporation, to set in their behalf. You and Mr. Cook ask that settlement be made to the two of you jointly. For the reasons stated in our correspondence with Mr. Cook and in the light of what is hereinafter stated our office may not comply with your request.

Section 7(c)(2) of the International Claims Settlement Act of 1949, as amended, 22 U.S.C. 1626(c)(2) vests in the Comptroller General of the United States the responsibility of determining the person or persons entitled to receive the award in question.

Inasmuch as the Vanderbilt Chemical Manufacturing Corporation was organized under the laws of New York, the applicable law of that State must govern the disposition of the award. Section 29, General Corporation Law, Consolidated Laws Service, New York provides in pertinent part as follows:

"Upon the dissolution of a corporation for any cause and whether voluntary or involuntary its corporate existence shall continue for the purpose of paying, satisfying and discharging any existing liabilities or obligations, collecting and distributing its assets and doing all other sets required to adjust and wind up its business and affairs, and it may sue and be sued in its corporate name. Unless other persons shall be designated by law or by a court of competent jurisdiction, the directors shall have full power to settle its affairs and to distribute to the persons entitled thereto the assets remaining after the payment of debts and necessary expenses, During the period of adjusting and winding up the business and affairs of such corporation, the directors may, from time to time elect or appoint officers in the corporation having the powers and duties provided in the by-laws existing at the time of such dissolution, and such other powers and duties as may be conferred upon them by resolution of the directors; and such agents, employees, accountants and counsel as in the judgement of the directors may be required.* * *"

We have of record a photostatic copy of a document executed on May 3, 1956, by the Deputy Secretary of the State of New York which shows that the Vanderbilt Chemical Manufacturing Corporation was dissolved by proclamation of the Secretary of State pursuant to section 203-a of the Tax Law of New York as enacted by Chapter 297, Laws of 1929. Such dissolution clearly makes the above-quoted provision of law applicable in the matter.

Failing other alternatives i.e., the winding up of the corporation by its directors or persons appointed by the directors during the period of dissolution for the purpose of winding up the corporation, it would seem that under the quoted provision, the only person with authority to act on behalf of the corporation at this time would be a person designated by a court of competent jurisdiction. We have nothing of record which shows that Clyde W. Cook, or the heirs of Clarence W. Embrey, have received such designation.

It may well be that -- as you say -- our office has all of the information that could be made available to a New York court. However, such fact would not, as you indicate in your letter, render fruitless an attempt to invoke the aid of a New York court in the matter. On the contrary, inasmuch as our office will not authorize settlement to anyone until a court has made a designation, the only fruitful action that can be taken is to petition a New York court of proper jurisdiction to designate a person to wind up the affairs of the Vanderbilt Chemical Manufacturing Corporation.

It is not our purpose to unduly delay settlement of this award. However, since Mr. Cook has been unable to furnish the evidence heretofore requested, no action may be taken in this matter until a person has been duly appointed to wind up the affairs of the Vanderbilt Chemical Manufacturing Corporation.

Very truly yours,

Ralph E. Ramsey Associate General Counsel