41 Barb. 520 | N.Y. Sup. Ct. | 1862
Various objections are made to a confirmation of the report of the referee in this proceeding; some upon grounds common to all the stockholders, and others relating only to the particular case of the party objecting. The former class will be first considered.
The objection that this proceeding is barred by the judgment recovered in the action commenced by Peter S. Oliver, against the bank, is unsound. The action referred to is an essentially different remedy from this proceeding. It was instituted under the revised statutes, (2 R. S. 463, §§ 39, 40,) by a stockholder of the bank, to compel the application of its assets to the payment of its debts; while this proceeding is brought under the provisions of an act passed in 1849, (Laws, ch. 226,) to enforce the individual liability of the stockholders of the bank for the payment of its debts remaining after its assets are exhausted, which liability was created by the constitution of 1846, and by the very terms of the act can be enforced in no other manner than that prescribed by the act itself. (§ 1.) Besides, it does not appear that the plaintiff in this proceeding ever acted under his appointment as receiver in the action commenced by Mr. Oliver. On the other hand, it appears that under his appointment in this
The constitutional questions raised by the stockholders have been decided adversely to their views. (In the matter of Oliver Lee & Co.’s Bank, 21 N. Y. Rep. 9; S. C. in Supr. Court of U. S. Matter of the Empire City Bank, 18 N. Y. Rep. 199. In the matter of the Reciprocity Bank, 22 id. 9.)
The objections taken to the report of the receiver, on which the justice acted in making the order of reference, are not available to the stockholders for the purpose of defeating this application. The only object of the report was to inform the court that the affairs of the bank presented a case within its general jurisdiction of proceedings against the stockholders of banks of issue, to charge them with the unpaid debts of such banks. The order of reference was the beginning of litigation as to the stockholders. They were not parties to the previous proceedings of the receiver, nor in any respect concluded by them. They had an opportunity, before the referee, to contest all the matters required by the act to be alleged in the report of the receiver, (per Denio, J. in the matter of the Empire City Bank, supra, pp. 208, 209, 211 to 214,) and having availed themselves of such opportunity, they cannot now object that the report was insufficient.
The same reasoning applies to the position taken by the
It is objected that the power of the court to order a reference in this proceeding was exhausted by its order to that effect of 2d May, 1860, under which a hearing was commenced before the referee, but not brought to a conclusion, and which order has not been vacated. The second order of reference made while the first was in force, may have been irregular, but it was not absolutely void. It was in the power of the court, on good cause shown, to vacate the first order, at any time before the referee had completely executed it, and upon a proper application, to make another order of the same nature. It was admitted before the referee that after the decision of the court of appeals in the matter of the Reciprocity Bank (supra') the stockholders took the objection, upon the healing under the first order, that the assets of the bank had not been exhausted, and the counsel for the receiver thereupon withdrew his papers from the referee. Eor aught that appears, this step was taken by him without any objection by the stockholders, and no further action was had
It remains to consider the second class of objections.
I think the objectors, Curtis and Jones, as surviving executors of Daniel S. Marsh, are properly chargeable as the holders of the twenty shares of stock which appear on the books of the bank, to have been held originally by their testator, and subsequently by his executors. Hot that they are to be regarded as “equitable owners, ” within the meaning of the second section of the act, but having the legal title to the stock, they are liable under the first section. Besides, the pecuniary liability which would have rested upon the testator, if he were now living, may be enforced against his estate, and primarily against his personal property, the legal title of which is in them.
For similar reasons the administrators of Andrew F. Oliver are liable in their representative character.
I am also of the opinion that Mrs. Rankin is properly charged, as the executrix of the will of her husband, upon the stock in her hands. Her case is substantially like that of the executors of Marsh, except that it is claimed in her behalf that she was not served with notice of the hearing before the referee. Her husband was living when the order of reference was made, and as service of the notice could
Affirmed at the Monroe General Term,
December, 7 1863.
The report of the referee should be confirmed and judgment ordered accordingly.
J. 0. Smith, Justice.
E. E. Smith, Johnson and J. 0. Smith, Justices.]