8 Daly 66 | New York Court of Common Pleas | 1878
Lead Opinion
The plaintiff did not raise upon the trial the question which he discussed on the argument of his appeal—whether a mere advance by the defendants of money to the company, without proof that the money had been used in paying debts of the company, would protect the defendants against the claims of creditors of the corporation (Garrison v. Howe, 17 N. Y. 458 ; Tallmadge v. Fishkill Iron Co., 4 Barb. 882; Bank of Poughkeepsie v. Ibbotson, 24 Wend. 473 ; Briggs v. Penniman, 8 Cow. 387). Had that question been raised at the trial, evidence might have been offered to show that the defendant’s advances were actually used in paying the company’s debts. We are not, therefore, at liberty to discuss the point now raised for the first time. The following questions were the only ones upon which plaintiff asked to be allowed to go to the jury:—
I. Was the discounting of the company’s $10,000 note by defendants a bona fide transaction, or was it a mere contrivance to protect them in their purchase of the stock of the company ?
II. If the discounting of that note was bona fide, was not the judgment obtained thereon satisfied in the transaction with Cox, and left open for the purpose of the defence?
As to the first point, there was no evidence in the case upon which the jury could have found that the discounting of the company’s note by defendants was a contrivance to protect them, and not a bona fide transaction. As to the second point it is sufficient to say that whether the transaction with Cox operated as a discharge and satisfaction of the judgment against the company or not, it was a question of law for the court, and not a question of fact for the jury. The paper, assumed by the witnesses to be a release, was offered in evidence and appears in the case, and is no release, but simply a receipt for Cox’s note with collaterals, and an agreement that when paid they shall be in satisfaction of the judgment.
The only remaining question is, whether defendants were entitled to a dismissal' of the complaint, or whether plaintiffs were entitled to equitable relief in this action with respect
The judgment should be affirmed with costs.
Concurrence Opinion
I concur in the affirmance of this judgment. The defendants proved that the judgment was recovered upon a note of the company for $10,000, which they, the defendants, discounted, and none of the evidence given by the plaintiff, or embraced in his very general offer, was evidence tending to show that the original transaction was a contrivance to protect the defendants against their statute liability as stockholders. It might, coupled with other circumstances, have raised a question of bona fide, sufficiently to entitle the jury to consider and pass upon such a point, but of itself it amounted to nothing, and in no way impaired or affected the defendant Sands’ statement that the note was discounted at the request of the president of the company.
Van Hoesen, J., concurred in the opinion of Joseph F. Daly, J.
Judgment affirmed upth costs.