139 Misc. 533 | N.Y. Sup. Ct. | 1931
Two motions are before the court; the first being a motion by plaintiff for summary judgment, and the second a cross-motion by defendants to dismiss the complaint on the ground that it does not state facts sufficient to constitute a cause of action.
Liability is predicated on sections 71, 72 and 73 of the Stock Corporation Law, which provide, subject to certain limitations and upon the performance of certain conditions precedent, for personal liability of the stockholders of “ every stock corporation ” for all debts due to employees for services performed by them for such corporation.
Though the statute in terms imposes liability on the stockholders of every stock corporation, the Words must be construed as impliedly referring to domestic stock corporations only. The laws of this State relating to the creation and regulation of the affairs of corporations are enactments respecting corporations created by it, and do not, unless specifically otherwise providing, affect foreign corporations. Though the Stock Corporation Law contains many provisions referring to the rights, powers and liabilities of corporations and of the officers, directors and stockholders thereof, these provisions, standing alone, are applicable only to domestic corporations. This is apparent from a reading of section 114, making applicable to officers, directors and stockholders of foreign corporations certain provisions of the Stock Corporation Law. Under this section the provisions of section 58, providing that “ no stock corporation ” shall pay dividends which shall impair its capital, are made applicable to foreign corporations; section 59, prohibiting the directors of “ any stock corporation ” from making unlawful loans to stockholders, applies to foreign corporations; section 61, imposing liability on the officers and directors of “ a stock corporation,” is made applicable to foreign corporations; and the provisions of section 15, providing that “ no corporation ” shall transfer property while insolvent, etc., is similarly made applicable to foreign corporations. Likewise, sections 135, 136 and 150 of the General Corporation Law, made applicable to foreign corporations by section' 222 of that law, speak generally of “ corporations.” Had the intent of the Legislature, in passing these enactments with respect to corporations, been to include foreign as Well as domestic corporations, there would have been no need for the enactment of section 114 of the Stock Corporation Law and section 222 of the General Corporation Law.
Judicial authority supports this view. In Wamsley v. Horton & Co. (12 App. Div. 312; affd., 153 N. Y. 687), the court, in referring to the provisions of the General Corporation Law of 1892 (Laws of 1892, chap. 687), said that they were not regarded as applicable
Defendants’ motion to dismiss the complaint is granted. Plaintiff’s motion for summary judgment is denied.