Hepworth v. Union Ferry Co. , 69 N.Y. Sup. Ct. 257 ( 1891 )

Barnard, P. J.

On the 9th of June, 1889, the plaintiff handed to the defendant’s ticket-seller, in New York, money for a passage across the river to Brooklyn. The defendant kept his money, refused a ticket, and committed an assault on him, and forcibly put him in the street. The plaintiff commenced an action for the assault in October, 1889. The corporation denied the facts on which the plaintiff based his complaint, and, while the action was at issue and untried, the charter of the defendant expired by its own limitation. The Revised Statutes provide that on a dissolution of a corporation the directors shall be trustees for the creditors and stockholders, with full power to settle the affairs of the corporation. A power to continue the action against the corporation when its charter expired pending an action against it was given by chapter 295, Laws 1832. This law was repealed in 1880. Chapter 245, Laws 1880. The tort stands upon the same basis as a contract. Martin v. Walker, 12 Hun, 46; Ford v. Johnston, 7 Hun, 563; Baker v. Gilman, 52 Barb. 26; Lichtenberg v. Herdtfelder, (N. Y. App.) 8 N. E. Rep. 526. These cases either hold or approve of the principle that a conveyance made during a pending litigation to defeat the collection of a judgment for a tort can be set aside as if it was a contract debt. In other words, the statute creditor embraces those persons whose claims are based upon torts. The charter pledges the property of the corporation to pay all damages for misfeasance of the company’s employes. The law makes the directors trustees to settle the affairs of the corporation, and to pay all debts against the corporation. The court has the power to continue the action which was pending at the dissolution of the corporation of necessity. Such power existed before the act of 1832, and exists since the repeal of 1880. A judgment taken against a corporation whose charter had been amended by decree, and after notice by the attorney for the corporation that he had no further power to appear in the case, was held bad by the court of appeals. McCulloch v. Norwood, 58 N. Y. 562. In the present case the order makes the statute trustees defendants, and this seems to be the rule recognized in McCulloch v. Norwood, supra. The order is therefore right, and should be affirmed, with costs and disbursements.

Pratt, J., concurs.