164 Misc. 395 | N.Y. Sup. Ct. | 1936
The plaintiff, as receiver of the Title and Trust Company of Western Pennsylvania, Connellsville, Pennsylvania, sues to recover an unpaid stock subscription. The complaint, in substance, alleges that defendant is the transferee of 100 shares of stock of the trust company, of the par value of $100 each, upon which there is unpaid $50 per share. It is further alleged that defendant appeared upon the records of the bank as one of its stockholders on July 1, 1930, when plaintiff, as receiver, took possession of its affairs. The pleading refers to a statute of Pennsylvania, which provides, among other things, that stock in a trust company may be issued upon payment of fifty per cent of the par value, the balance
The sole question presented upon this motion is whether the cause of action set forth is limited by subdivision 4 of section 49 of the Civil Practice Act, or by subdivision 1 of section 48. The cause of action is upon a contract liability pure and simple. (Stoddard v. Lum, 159 N. Y. 265, 272; Glenn v. Garth, 133 id. 18, 31.) The liability arose as against the original subscriber, either by express contract, or one implied by law, from his acceptance of the certificate from the corporation. (Gold v. Paynter, 101 Va. 714; 44 S. E. 920.) The contract of subscription is an agreement to pay the unpaid part thereof, from time to time, as it is called for by the board of directors. (Wyman v. Bowman, [C. C. A.] 127 Fed. 257.) The relation of stockholder and company implies a promise to pay such assessments as are legally assessed, and the common law furnishes a remedy for a violation of this engagement by action in assumpsit. (Williams v. Lowe, 4 Neb. 382; affd., 94 U. S. 650; 24 L. Ed. 216.) When this certificate, upon which there was unpaid $5,000 of the original subscription price, was transferred to defendant, when recognized by the corporation, the latter became liable thereon as transferee, to the same extent as the original subscriber. (Rochester & K. F. Land Co. v. Raymond, 158 N. Y. 576; Sigua Iron Co. v. Brown, 171 id. 488; Richards v. Robin, 86 Misc. 528, 532; affd., 225 N. Y. 719; Campbell v. American Alkili Co., [C. C. A.] 125 Fed. 207; 14 C. J. 637, § 944, also § 1184.) Regardless of statute, the complaint sets forth, as against this defendant, a contract obligation at common law. It was not necessary to have referred to the Pennsylvania statute, except to negative a possible defense, or perhaps to show the extent of the contract liability and the time when the installments were due. But it is not by virtue of that statute that this cause of action arises. The most that the statute does is to amplify the terms of the agreement implied by law. Neither do I believe that this pleading is subject to the defect existing in the complaint in Milliken v. Caruso (205 N. Y. 559). There the pleader alleged a completed transaction, namely, a sale of stock at an agreed price, which had been paid. Here the language clearly indicates an uncompleted transaction. In substance, it states that this defendant owns stock in the trust company which has never been paid for, although he has been recognized by the trust company as a stockholder. It is for him to allege any circumstances excusing him from the implied liability to make good the difference. (Atlantic Trust Co. v. Osgood, [C. C.] 116 Fed. 1019.)
Since the summons was served within six years from the time plaintiff took possession of the trust company’s affairs what has
For the foregoing reasons, the motion is denied, with ten dollars costs.