27 Barb. 424 | N.Y. Sup. Ct. | 1857
The complaint does not ask any judgment against the trust company, or show any reason for making it a party to the suit, beyond the mere statement that it has been appointed receiver of the Suffolk Bank. It may be that the rights and obligations flowing from this make it proper or necessary to sue the receiver with, or instead of the bank, but there must be some right to relief from the receiver stated, and some relief prayed. The mere fact that A. is the assignee or the receiver of B., whether these be natural of artificial persons, will not justify a creditor of B., in bringing,A. as a party into every suit against B., or where the rights and the remedies of the plaintiff, so far as appears, end with B., and the assignee or receiver is not tó be affected by the suit, nor to be adjudged or compelled to do any thing for the relief of the plaintiff. I do not see that the plaintiff here shows any right to maintain this action against the trust company, or that he can be permitted to sue that company and put it to a defense, when no claim whatever is made against it. This is not an action affecting real estate, in which the trust company has an interest that is to be foreclosed. It is simply an action on a money demand, and no demand is made, or cause of action shown, against the trust company. As to the company, the complaint should have been dismissed.
The action against the bank proceeds on the theory that because the plaintiff subscribed for, or purchased, ten shares of the stock, and paid in the amount of the subscription, and the bank had refused to deliver to him certificates, the bank was therefore indebted, and bound to repay him the money which he had paid upon the subscription, as so much money had and received to his benefit.
There is neither precedent nor principle for such an action. The plaintiff does not cease to be a stockholder, nor to be the
The only difference between this action and that which was before this court in the case last mentioned, is that here it would seem that the plaintiff purchased this stock, or the - right to it, of the original subscriber, before any part of the subscription had been paid, while in that case the plaintiff was a purchaser of full paid stock. It is true the injury alleged here is, in form, the refusal to issue scrip, while there it was the refusal to permit a transfer on the books; but in
The articles of association of this bank (Art. 2, § 4) provided that no stockholder should be permitted to transfer his shares, or receive a dividend thereon, who should owe the bank a debt then due; unless by consent, etc. Authority is also given by the articles, (Art. 2, § 3,) whenever such a debt is past due, to sell the stock at the Merchants’ Exchange, or at the Brokers’ Board, and apply the proceeds to pay the debt. Such a condition as this, annexed to the right of ownership and control of the stock, has been upheld, whether it be created by the charter or articles of the bank, or by a by-law properly made. (Union Bank of Georgetown v. Laird, 2 Wheat. 390.) It is true these conditions and restrictions have generally been asserted against a purchaser of the stock, in order to secure the payment of the debts of the vendor or party making or attempting a transfer. But I think the two provisions, taken together, are intended to create, and do create a lien upon the stock, in favor of the bank, for the debts of the holder, and that such holder can no more assert or maintain any other rights of ownership, or establish any right to damages, from an interference with his absolute control of the stock, than he can claim the right to transfer and sell it without satisfying the debt and discharging the. lien. If the state of facts which the defendants offered to prove were true, the bank would have had a right, on the very next day after issuing the certificates for this stock, to sell it, transfer it to a purchaser, and apply the money to pay the plaintiff’s debt. The law would hardly call upon them, under such circumstances, to perform an act so utterly nugatory as the issuing a certificate that the plaintiff was entitled to the stock which was thus pledged for his debts,
It can make no difference that the debt was an obligation of a partnership of which the plaintiff was a member, and "not the sole and individual debt of the plaintiff. The debts of a partnership, although joint, are yet the debts of all the partners, for which the individual property of all, in a proper order, is liable. It does not make this any the less the debt of the plaintiff, that it was also a debt of several other persons with him. Otherwise hardly any obligations held by banks of discount would answer the rule by which such liens upon their stockholders could be enforced; for hardly any evidences of debt held by them are the sole and single debts of any one person. „ All that the articles of the bank require, to create the lien, is that the shareholder should owe a debt then due. It is immaterial in what form the debt may exist, or who or how many other persons may be liable for the same amount, upon the same instrument. The debts of a partnership, at all events, are the debts of all the partners, and it would be a narrow construction of such a provision, to say that stock standing in the names of the individual part-» ners could not be held pledged, as their other property would be liable, for such a joint debt. The evidence of such debts, offered in this case, should have been received to reduce, and if true to the extent of the offer, it would entirely have defeated, this recovery.
S. B. Strong, Birdseye and Emott, Justices.]
For these reasons the order denying a new trial should he reversed, the verdict set aside, and. a new trial ordered; costs to abide the event.