262 A.D. 162 | N.Y. App. Div. | 1941
Plaintiff sues as assignee of the trustee in bankruptcy of Mexican-American Habanero Corporation to recover $22,750, with interest as a balance claimed to be due the corporation on defendant’s stock subscription. In November, 1933, defendant subscribed for 10,000 shares of the corporation’s stock aggregating a par value of $100,000. Apparently defendant paid to the corporation about $77,000 before the corporation went into involuntary bankruptcy in December, 1934. In January, 1938, the trustee in bankruptcy for the sum of fifteen dollars assigned to plaintiff this claim with other accounts receivable. On the basis of such assignment, plaintiff has now recovered summary judgment against' defendant for $31,878.75.
Defendant appeals from an order denying his motion for summary judgment, and from a judgment and order granting plaintiff’s motion for summary judgment. On defendant’s motion Special Term held that the two-year limitation in section 73 of the Stock Corporation Law was not applicable.
Defendant contends that whether the action is on contract for the collection of the debt allegedly due the corporation or under the Stock Corporation Law for an assessment, defendant’s liability, in the case of a bankrupt corporation on an unpaid stock subscription, is to pay only such amounts as have been determined by a preliminary investigation and assessment to be necessary to pay the corporation’s debt to bona fide creditors; that the complaint herein does not make any such allegation or allege any facts sufficient to raise an inference of such necessity and accordingly fails to state a cause of action.
The sufficiency of the complaint can be raised at any time (Civ. Prac. Act, § 279), and while technical defects may not be available on an application for summary judgment (Curry v. Mackenzie, 239 N. Y. 267, 272), if the complaint is insufficient, summary judgment is not authorized, and where, as here, the defects cannot be remedied, defendant on his motion should have summary judgment in his favor.
Matter of Canister Company (248 Fed. 587, 589) states the Federal rule as follows: “ In order to make an assessment upon stockholders for the payment of the debts and administrative expenses of the bankrupt company, it is necessary for the referee, inter alia, to find: (1) that the assets of the bankrupt company are
Referring to the doctrine laid down in Scovill v. Thayer (supra), the court in Jeffery v. Selwyn (220 N. Y. 77, 84, 85) said that it might “ well agree with the reasoning of these cases * * * that payment in full of the stockholder’s liability upon unpaid subscriptions for capital stock in a bankrupt corporation should not be unnecessarily insisted upon, and that the trustee should recover only such amounts as are determined to be necessary to pay the debts and expenses * * *;” but it then pointed out that the plaintiff in that case had the authority of the bankruptcy court to make demand and collect of defendant the full amount due, as there the trustee had obtained an order from the United States District Court authorizing him to issue a call on the defendant for the sum due on his stock subscription. In the absence of any allegation that it has been determined that an assessment is necessary or any allegation whatever that an order of the bankruptcy court was issued directing the trustee to issue the call on defendant, the complaint fails to state any cause of action against defendant, f The learned Special Term relied on Palmer v. Scheftel (194 App. Div. 682; affd., 236 N. Y. 511) to sustain the complaint. But in that case the action was by the trustee in bankruptcy and the complaint alleged that after notice to the defendant an order was duly made by the United States District Court granting leave to plaintiff to institute the action for the recovery of the stated sum as a balance due by virtue of defendant’s stock subscription.
In the first above-entitled action, the order denying defendant’s motion for summary judgment dismissing the complaint should be reversed, with twenty dollars costs and disbursements, and the motion granted; and in second above-entitled action, the order granting plaintiff’s motion for summary judgment and the judgment entered thereon in plaintiff’s favor should be reversed, with costs, and the complaint dismissed, with costs.
In the first above-entitled action: Order denying defendant’s motion for summary judgment dismissing the complaint unanimously reversed, with twenty dollars costs and disbursements, and the motion granted.
In the second above-entitled action: Order granting plaintiff’s motion for summary judgment and the judgment entered thereon in plaintiff’s favor unanimously reversed, with costs, and the complaint dismissed, with costs.