Ginsberg v. Automobile Coaching Co.

136 N.Y.S. 354 | N.Y. App. Div. | 1912

Scott, J.:

This is an action by a judgment creditor of the defendant corporation to require the mdividual defendant to account for certain personal property of the corporation conveyed to said defendant through the execution of chattel mortgages.

The pleadings consist of a complaint and a demurrer.

The action is brought under the provisions of section 66 of the Stock Corporation Law (Consol. Laws, chap. 59; Laws of 1909, chap. 61). The complaint alleges the recovery by plaintiff on May 1, 1908, of a judgment for damages for the death of his decedent, and that said judgment was duly docketed, execution issued thereon and returned unsatisfied, and that said judgment remains unpaid. It is-alleged that the individual defendant was a “ shareholder and was otherwise interested in ” the company, and that on July 18, 1907, the said company being insolvent and in contemplation of insolvency, and with the intent of giving a preference to the individual defendant, executed and delivered to said defendant chattel mortgages upon automobile sight-seeing touring-cars, which were then the property of the company. It is not alleged' that these chattel mortgages were given without consideration, or upon inadequate consideration, or in payment of an antecedent debt due to said defendant. It is alleged that at the time of the execution of the mortgages the automobiles mortgaged constituted the sole assets of the company, and that its liabilities exceeded its assets. The plaintiff treated the demurrer as frivolous, and moved for judgment upon that ground, but, so far is it from being frivolous, it is clearly good. The transfers of which plaintiff complains are alleged to have been made on July 18, 1907, and there is no allegation that on that date plaintiff was a creditor of the corporation or held any claim against it. All that is said on that score is that “ prior to the first day of May, 1908,” the plaintiff commenced an action, but when the death of plaintiff’s decedent occurred which gave rise to the actipn does not appear. It is probably true that plaintiff became a creditor as soon as he was appointed administrator, because the' liability of the defendant corporation accrued when the death occurred. If the death had been caused before the transfer, although judgment was not entered thereon until afterwards, the plaintiff could maintain the action (Kain v. Larkin, 4 App. Div. 209), but there is no such allegation. We are also of the opinion that no cause of action is stated against Charles Burkelman in his representative capacity. Even if he held shares hi the defendant corporation as executor, and the chattel mortgage was in form made to him as executor, the cause of action the plaintiff has attempted to set out is one against him personally, and not against the estate of which he is executor.

It follows that the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion for judgment denied, with ten dollars costs.

Ingraham, P. J., McLaughlin, Miller and Dowling, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.