Card v. Groesbeck , 124 N.Y.S. 372 ( 1910 )

Kruse, J.:

The plaintiff, a former employee of the Prospect Park Company, a domestic stock corporation, seeks to hold the defendant, a stockholder thereof, personally liable for his claim for services performed by him for the corporation. He recovered a judgment and the defendant appeals.

The liability is asserted under the provisions of the Stock Corporation Law (Gen. Laws, chap. 36 [Laws of 1892, chap. 688], § 54, as amd. by Laws of 1901, chap. 354; revised into Consol. Laws, chap. 59 [Laws of-1909, chap. 61], § 57), which make a stockholder personally liable for such a claim upon the laborer giving notice in writing to the stockholder within thirty days after the termination of such services that he (the laborer) intends to hold the stockholder liable, and commencing his action against the stockholder within thirty-days after the return of an execution unsatisfied against the corporation upon a judgment recovered against it for services. The act (§ 55; revised into § 59) further provides that the amount due on the execution shall be the am’ount recoverable,- with costs,' against the stockholder. The act contains other provisions, which need not be referred to at this time.

The plaintiff brought an action against the Prospect Park Company in the Supreme Court upon three separate claims; one for his personal services performed for the company, and two other claims which had been assigned to him. The Prospect Park Company denied the allegations of the complaint, except that it was a corporation.. A trial was had, and the jury, under instructions of the presiding judge, found in answer to questions specifically submitted to it that the plaintiff was entitled to recover upon the claim for his own services the sum of $115 ; that he was entitled to recover upon one of the assigned claims $469.99 and upon the other $50.

The assigned claim for $469.99 includes the value of labor performed by one George E. Card for the Prospect Park Company to the amount of $231.87. This action is brought to recover the two claims for labor, namely, $115 for the personal services of the plaintiff and $231.87 for the work done by George E. Card, besides $147.44, the costs allowed in the action against the corporation, making $494.31, for which judgment was directed, execution having been issued upon the judgment to the sheriff of Jefferson county, and by him returned wholly unsatisfied (although the sufficiency of his return is questioned by the defendant).

The defendant conceded on the trial of this action the value of the labor, and the evidence conclusively establishes that the work was done as claimed.

As has been stated, the defendant challenges the sufficiency of the return on the execution by the sheriff. No question is raised but that the sheriff returned the execution to the clerk’s office as he was directed to do by the process, but the only return indorsed thereon is the words “Nulla iona ; ” and it is claimed that these words mean “No goods,” while the execution requires the sheriff to satisfy the execution 'out of real as well as personal property. Without going into the history of the use of these words.or into an extended discussion of their meaning, it is sufficient to say that this form of return, as generally understood, means that the execution is uncollectible, and has been held sufficient in an action similar to this. (Wheeler v. Miller, 24 Hun, 541; affd., 90 N. Y. 353. See, also, Crocker Sheriffs [3d ed.], § 428.)

The more serious objection is that of joining in one action against the corporation the claims in controversy here with others for which the defendant eoncededly is not liable, and including in the judgment such other claims. I would think the objection good if the defendant stockholder had been prejudiced thereby, but, as has been seen, neither the nature nor amount of the claim is in dispute here. Nothing was realized upon the execution; the claims are eoncededly wholly unpaid ; all the costs which were allowed in the action would have been recovered if the action against the corporation had been upon the claims for services alone, and the plaintiff’s remedy against the corporation exhausted, as the statute, contemplates.

I am not aware that the precise question has been decided by any of the appellate courts of this State, and the decisions in other jurisdictions called to my attention afford but little assistance .in determining the question involved here, with the possible exception of the case of Stedman v. Eveleth (47 Mass. 114); and the conclusion reached here is quite in harmony with the reasoning of that case.

It is contended that the claims having been in dispute, in the action against the corporation, there is no way of determining from the record in that ease what amount the jury allowed for labor; that the special findings of the jury were unauthorized. Section 1187 of the Code of Civil Procedure expressly authorizes.special findings of fact by the jury, and the value thereof is eoncededly not now in dispute.

I think the notice to the stockholder was properly proven and was sufficient, and that none of the objections urged against the recovery-is well taken.

The judgment and order should be affirmed, with costs.

All concurred.

Judgment and order affirmed, with costs.