48 N.Y.S. 336 | N.Y. App. Div. | 1897
The plaintiff, as a creditor of the Harlem River Bank, a corporation organized and doing business under the laws of this State, brings this action on behalf of himself and all other creditors similarly situated to recover from the defendants, as the stockholders of the bank, an amount equal to the par value of the capital stock owned by the defendants respectively; and this appellant demurs to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. The complaint alleges that the Harlem River- Bank was a domestic corporation duly organized and carrying on business under and pursuant to the laws of the State of New York relative to banks, and was a banking association haying its principal place of business in the city of New York in said State; that on
We agree with the counsel for the appellant in his statement of the rule that in all actions to enforce a liability of stockholders it is necessary for the plaintiff to allege all of the facts which show that the liability exists, but in construing such a complaint upon demurrer the same rule is applied as in other cases, that a demurrer to a complaint for insufficiency can only be sustained when it appears that, admitting all the facts alleged, it presents no cause of action whatever. “ It is not sufficient that the facts are imperfectly or informally averred, or that the pleading lacks definiteness and precision, or that the material facts are only argumentatively averred. The complaint on demurrer is deemed to allege what can be implied from the allegations therein, by reasonable and fair intendment, and facts impliedly averred are traversable in the same manner as though directly averred. * '* * ‘ It is sufficient that the requisite allegations can be fairly gathered from all the averments in the complaint, though the statement of them may be argumentative, and the complaint deficient in technical language.’ ” (Marie v. Garrison, 83 N. Y. 23.)
Keeping in mind these rules, we will consider the objections taken by the defendant to the complaint in the order in which they are presented to us. The first objection is that “ The complaint does not show when or under what law the Harlem River Bank was organized, nor when the defendants became stockholders.” The i complaint does allege that at various times thereafter referred to, the Harlem River Bank was a domestic corporation, duly organized and carrying .on business under and pursuant to the laws of the State of Hew York relative to banks, and was a banking associa
We think that.a fair inference from this allegation of the complaint is that this defendant bank was ; carrying on business under and in pursuance of this la-w of the State of New York then in force relative to banks. Whether it had been incorporated under a general law existing prior to the passage of this act, or under a special act of the Legislature passed prior thereto., if it was actually, at the time the indebtedness of the plaintiff became clue, carry?ing on its business under this act of the Legislature, its stockholders would be liable as provided for in the act under which it'was carrying on its business, irrespective of the act under which it was originally incorporated. The fact that it had received . deposits prior'to the time when the Banking Law was passed, is not of itself sufficient to show that the stockholders were not liable under the provisions of the Banking Law, under which it was engaged in car- ■ rying on business at the time when, the liability to this plaintiff became fixed and determined.
The objection that the complaint does not state facts sufficient to constitute a cause of action must appear upon the face of the complaint; and when the Banking Law of, the State, at the time of the commencement of the action, imposes this liability upon the stockholders of every such corporation, namely, all moneyed corporations “ authorized by law to issue bills, notes or other evidences of debt for circulation as money, or to receive deposits of money and commercial paper and to make loans thereon, and to discount bills,notes or other commercial paper, and to buy and sell gold and silver bullion or foreign coins! or bills of exchange ” (Banking Law, supra, § 2), such liability applies to each corporation organized for the purpose stated and which is doing business under this law. The liability
In the case of Close v. Noye (147 N. Y. 600), relied on by the defendants, the question was presented upon the trial of the action, and it was there alleged and proved that the corporation of which the defendant was a stockholder was organized and did business under the act of 1848 (Chap. 40), as amended by chapter 333 of the Laws of 1853, and that-the Stock Corporation Law of 1890 (Chap. 564) did not apply. ■ '
Nor do we think that the objection taken by the defendants that, “ it is not shown when the deposits were made,” brings the action within section 55 of the Stock Corporation Law of 1892 (Chap, 688), which provides that “ no stockholder shall be personally liable for any
The relation between a bank and its depositors is well settled. Thé bank becomes the debtor of a depositor, but the amount is-payable upon the demand of the depositor. It becomes due when the depositor makes a demand for its payment.. The essence of the contract between a bank and its depositor is that the ' bank shall retain the money until the depositor demands its repayment. The fact that an account existed f.or a number of years, during which time there had been deposits and drafts made by. the depositor, would not bring an amount due at any particular time within the protection of a Statute of Limitation jmtil after a demand had been made upon the bank for its payment, or until after some act of the bank which plainly repudiated its obligation to the dej>ositor. Upon this allegation of the complaint the amount first became due to the depositor on. May 2, 1894, This provision of the statute cited is in the nature of- a Statute'of Limitations, and unless facts clearly appear, upon the face of the complaint which bring the claim within this provision, the objection cannot .be taken advantage- of upon demurrer, but must be taken by answer.
The objection that “it does not appear that all of the stockholders-have been made parties to this action ” is also without merit. It 'is alleged that the stock of the Haiü.em River Bank was $100,0.00, which was divided into 1,000 shares of the par value of $100 each, and that, at the time of the commencem ent of the action and the rendition of the decree hereinbefore referred to, the said stock was held and owned, and is still held and owned, by the several defendants thereinafter named. That is a clear .allegation that the whole
We also think that the allegation that the assets of the corporation are not sufficient to pay the debts of the bank is sufficient. The complaint alleges that after the application of the net proceeds of all of said assets toward the payment of said indebtedness, there will remain a deficiency upon the aggregate claims'of the creditors of the corporation exceeding the sum of $100,000, the total amount of the capital stock of the hank.
We think, therefore, that the judgment appealed from is right and should he affirmed, with costs, with leave to the defendant to withdraw demurrer and to answer the complaint upon payment of costs in' the court below and in this court.
Van Brunt, P. J., Barrett^ Rumsey and O’Brien, JJ., concurred.
Judgment affirmed, with costs, with leave to defendant to withdraw demurrer and answer on payment of costs in this court and in the court below.