Barker v. 472 Fulton Street Corp.

262 A.D. 892 | N.Y. App. Div. | 1941

Action under section 15 of the Stock Corporation Law, by judgment creditors of the respondent corporation to direct repayment to the corporation of sums of money paid by the corporation to a director, and of other corporate funds not accounted for. Judgment modified on the law and the facts by striking out the first decretal paragraph and by adding a paragraph providing that respondents Joseph Schwartz and Anna Schwartz be directed to pay $3,000 to the respondent corporation; and a paragraph providing that the respondents, or any of them, may apply for further relief at the foot of the judgment upon proof that any of the amounts found owing have already been repaid to or on behalf of the respondent corporation. As thus modified, the judgment, in so far as appealed from, is unanimously affirmed, with costs to appellants. Findings inconsistent herewith are reversed. The court finds that respondent Anna Schwartz was a director, officer and stockholder of the respondent corporation, and that the payment of $3,000 to her on November 18, 1939, and the assignment of rents to her on September 12, 1939, were at times when the corporation could not “ meet its obligations when due ” and that insolvency was imminent. It is also found that on September 12, 1939, the corporation was indebted to the said director in the amount of $3,200; that it was indebted to the owner of the premises in the amount of $2,916.67; that the bank balance of the corporation, including moneys received from a subtenant on that day, was $3,305.18; that the corporation had other obligations which are shown by the testimony of respondent Joseph Schwartz; that additional obligations of $5,192 for taxes and $2,916.67 for rent would mature on October 1,1939; that the payment of $3,200 to respondent Anna Schwartz left the corporation with a bank balance of $105.18; that the transactions of September 12, 1939, between the respondent corporation and respondent Anna Schwartz effected the giving of security to a director at a time of imminent insolvency; and that respondent Joseph Schwartz was concerned in the making of the transfer and payments. Present — Lazansky, P. J., Johnston, Adel, Taylor and Close, JJ. Settle order on notice.