Persch v. Simmons , 1889 N.Y. Misc. LEXIS 84 ( 1889 )

Ingraham, J.

The allegation of the complaint as to the ground of indebt■edness of the defendant to the People’s Dairy Association is that the said corporation sold and delivered to this defendant 200 shares of the capital stock •of said association, for which the defendant agreed to pay the sum of $2,000, of which the sum of $500 is still unpaid. That the defendant was indebted to the corporation in the sum of $500, and that the corporation could main~tain an action at law against the defendant for the balance due, is clear. Assuming that the transaction was a subscription by the defendant to the stock ■ of the corporation, it is settled in this state that such a subscriber becomes a ■ debtor to the corporation for the balance of his subscription, which the Corporation could recover from him in an action at lavv. Dayton v. Borst, 31 N. Y. 435; Railroad Co. v. Mason, 16 N. Y. 464.

The defendant being thus indebted to the corporation, the plaintiff obtuined a judgment against' the corporation for a sum exceeding the amount due to the corporation from the defendant, and, having exhausted his remedy at law against the corporation, commenced this action to have the amount of defendant’s indebtedness to the corporation apnlied to the satisfaction of.' his judgment. Such an action is expressly authorized by section 1871 of' the Code, and is sustained by the decision of the commission of appeals ini Bartlett v. Drew, 57 N. Y. 588. In the case of Griffith v. Mangam, 73 N. Y. 612, the obligation was created by a statute of the state of New Jersey,, which provided that when the whole capital of a corporation shall not be paid in, and the capital paid shall not be sufficient to satisfy the claims of its creditors, each stockholder shall be bound to pay on each share held by him the-sum necessary to complete the amount of such share as fixed by the charter of the company, or such proportion of that sum as shall be required to satisfy the debts of the company. It was held that there could not be a recovery by-these creditors against a single stockholder, and that the action necessary to-charge the defendants was one in equity, bringing in the other stockholders in like predicament with him; and the case of Bartlett v. Drew, supra, was distinguished, as in that case the liability sought to be enforced was not one-created by statute, but a common-law liability. It is evident that under this statute the liability imposed upon the stockholder was only to pay so much of' the balance remaining on his stock as would be necessary to satisfy the debts of the corporation, and to ascertain that amount the presence of ail the stockholders was necessary. In Morgan v. Railroad Co., 10 Paige, 292, the judgment debtor was a domestic corporation, and it was decided that the plaintiff' must pursue the remedy prescribed in the Revised Statutes. The same may be said of Mann v. Pentz, 3 N. Y. 416. The judgment debtor is a foreign-corporation, and the return of the execution unsatisfied shows that it has no-property within this state upon which the plaintiff can levy to satisfy his judgment; and, unless he can maintain this action, he has no remedy in the* courts of this state.

The defendant does not demur on the ground of a defect of parties plaintiff or defendant; and as the objection was not taken by the. demurrer, so far as. it appears on the face of the complaint, it must be held to have been waived. Code, § 499. I think the demurrer should be overruled, and judgment ordered for plaintiff, with costs, with leave to defendant to answer within 20-days on payment of costs.