34 N.Y.S. 427 | N.Y. Sup. Ct. | 1895
This suit is brought for the purpose of charging the respondents and some of the other defendants with personal liability for the debts of the Brock Hill Coal Company, a foreign corporation, organized under the laws of Ohio. It does not appear that any of the other defendants have been served with process, or have ap
“A stockholder or creditor may enforce such liability by action jointly against all the holders or owners of stock, which action shall be for the benefit of all the creditors of the corporation, and against all persons liable as stockholders; and in such action there' shall be found and determined the amount payable by each person liable as stockholder on all the indebtedness of the corporation, in which adjudication no costs shall be taxed to nor collected of any stockholder to an amount which, together with the amount to be paid on said indebtedness, will exceed the amount of the stock on which he is liable.”
The prayer of the complaint is that the defendant creditors may be required to set forth and prove the amount of their respective claims against the coal company; that the court will proceed to ascertain and determine the amount of stock held by the defendant stockholders, and that after the determination of the amount of stock held by such defendant stockholders and the amount of debts owing by the coal company to the plaintiff and the defendant creditors, the court determine the amount of assessment upon the said stock that will be necessary to pay the costs of the proceeding and the debts, and that judgment be entered against the said stockholders respectively for the amount of assessment required for such purposes. The demurrer was sustained in the court below upon the case of Barnes v. Wheaton, 80 Hun, 17, 29 N. Y. Supp. 830, which is authority for the proposition that an action to enforce the statutory liability of the stockholders of an insolvent Ohio corporation cannot be maintained in the courts of 'this state, for the reason that the Ohio statute provided a special remedy, which is exclusive of all other remedies, and can only be administered in Ohio. We might well rest our decision, as did the court below, upon that authority, because not only is it
It is urged with much force that the objections pointed out do not go to the jurisdiction of the court to entertain the action. It is true that the cases are very exceptional in which the court has not jurisdiction where the parties have been brought before it by personal service, and the subject is one upon which it is not forbidden to adjudicate. So here, as a clean-cut question of jurisdiction, it may be doubted whether it would be correct to declare that, as between the plaintiff who comes into this forum and certain of the defendants who are brought in by personal service, the court would not have jurisdiction. That our courts will not in all cases entertain an action, even though it has jurisdiction, has been many times held. Cross v. Trust Co. (Sup.) 10 N. Y. Supp. 781, affirmed 131 N. Y. 330, 30 N. E. 125; Ferguson v. Neilson (Sup.) 11 N. Y. Supp. 524. It being, therefore, unnecessary to determine the question as to whether this court has or has not jurisdiction, we are clear that upon the facts presented it should not assume it, for reasons which, in addition to those already stated, may be briefly mentioned. If this were an action at law to enforce a statutory liability for a right given by an Ohio statute to an individual creditor against an individual stockholder, then this court would have and could assume jurisdiction. Where, however, an action in equity is necessary, and where, as here, what is sought is an accounting between creditors and stockholders to enforce a remedy given by the Ohio statute, in which suit it is necessary to have a marshaling of assets, and an accounting between creditors and stockholders, and a determination of the amount of liability, respectively, of each individual stockholder, such a suit, in the absence of the corporation itself, and in the absence of all those interested in the accounting, notably creditors over whom it is not shown that the court can acquire jurisdiction, should not be maintained in this state. In such a suit all the creditors and all the
There are some minor objections, such as the failure properly to designate the parties, a number of the defendants being described in the complaint either by corporate titles or else as partnerships. As to the corporations, it is not stated whether they are domestic or foreign, and there is no presumption that they are domestic. In respect to the partnerships, the names of the partners are not stated. And no sufficient description is given, either of the corporations or of the partners, by which they are properly brought into court Our conclusion, therefore, is that, apart from any question of whether, strictly viewed, the court has or has not jurisdiction, the objections to assuming it in a case like this are so many and serious that the court would not be justified in entertaining the suit; and upon this ground, in addition to the others stated in the case of Barnes v. Wheaton, supra, the judgment should be affirmed, with costs. All concur.