Dean v. Mace , 26 N.Y. Sup. Ct. 391 ( 1879 )

Brady, J.:

This is an appeal from an order of the court, at Special Term, and from a judgment entered thereon, overruling the demurrer to the complaint.

The action was brought to recover from the defendant, a stockholder of the Secor Sewing Machine Company, incorporated under the general manufacturing law of this State (see chap. 40 of the Laws of 1848), a debt of the corporation. It appears from the -complaint, that one John Warburton, during the years 1874 and 1875, performed work for the company as a laborer, and at an agreed price of $2,048.50 ; and it also appears that the company was prosecuted, in the State of Connecticut, by Warburton, to recover a judgment against.it for the sum of $2,231.99, execution upon which was duly issued against the company and returned wholly unsatisfied.

It does not appear that any other proceeding, in regard to the claim, was instituted elsewhere. The liability of the defendant depends upon sections 18 and 24 of the statute, to which reference has been made, and by this latter section it is declared, that “no stockholder shall be personally liable for the payment of any debt contracted by any company formed under this act, which is not to be paid within one year from the time the debt is contracted, nor unless a suit for the collection of such debt shall be brought against such company within one year after the debt shall become due,” etc. It does not appear, from the complaint, that the debt, contracted by the company in favor' of Warburton, was to be paid within one year from the time it was contracted, which is essential to its validity against a stockholder. It is true that the allegations are, that during the years 1874 and 1875, the services were rendered to the company; but that is not sufficient, taken in connection with the time the suit is alleged to have been commenced against the company, to show that the debt contracted was to be paid within the year from the time it was created. The liability is one which rests upon a statutory provision, and all the facts, showing that the demand is within its provision, should be alleged specifically. It is, also, to be said that the judgment contemplated by the act of 1848 (supra), is one to be obtained, in this State, against a corporation, where it is presumed its property is situate, out of which the judgment could be collected.

For these reasons it is thought the demurrer was well interposed, and should have been sustained.

Davis, P. J., concurred.

Judgment reversed.