139 N.Y.S. 974 | N.Y. App. Term. | 1913
The plaintiffs, judgment creditors of the -' Wyclcoff Trading Company, have brought' an action against
The complaint fails to allege and the plaintiffs do not claim that at the time of the alleged preferences the corporation had refused to pay any of its notes or other obligations, but they rely upon the' second sentence of section 66 of the Stock Corporation Law which provides that “ no conveyance, assignment or transfer of any property of any such corporation by it or by any officer, director or stockholder thereof, nor any payment made, judgment suffered, lien created or security given by it or by any officer, director or stockholder when the corporation is insolvent or its insolvency is imminent, with the intent of giving a preference to any particular creditor of the corporation shall be valid,” etc. It is the contention of the plaintiffs that a violation of this sentence occurs whenever a preference is given when a stock corporation is insolvent or its insolvency is imminent regardless of whether the corporation had refused to pay any of its notes when due. The difficulty with plaintiffs’ contention is that this sentence does not provide that no corporation or its officers may give a preference to particular creditors but provides only that no “ such ” corporation or its officers may do so. The word “ such ” can refer only to corporations of the class previously referred to and the only class of coiporations previously referred to is corporations which shall have refused to pay any of their notes or other obligations when due. Consequently, we can give the statute the construction placed upon it by the plaintiffs only if we entirely disregard the word “ such.” The plaintiffs argue that we have a right to disregard this word because the Stock Corporation Law was not intended to change the general policy of the state which by earlier statutes had provided against any insolvent corporation making any assign
I think, therefore, that regardless of our own views as to the probable legislative intent we must hold that the statute applies only to “ such ” corporations as have failed to pay their notes or other obligations.
Seabury and Page, JJ., concur.
Orders affirmed, with ten dollars costs and disbursements, with leave to appeal to Appellate Division.