150 N.Y.S. 828 | N.Y. Sup. Ct. | 1914
Alleging that the defendants, direct- ''' ors of a Maine corporation, doing business in this state, “ wilfully and fraudulently ” voted and paid dividends to stockholders from capital, the plaintiff sues at law as receiver of the corporation appointed in supplementary proceedings in an action brought by a creditor in the United States District Court for the Southern District of New York and seeks judgment for the gross amount of the dividends so declared and paid out. The complaint further sets forth the substance of a statute of the state of Maine whereby a criminal responsibility is imposed upon directors for authorizing such dividends, and a civil liability is declared upon the part of the persons to whom the sums are paid. The defendants have demurred to this complaint for insufficiency of substance, and also upon the ground that thé plaintiff has not legal capacity to sue. It may well be conceded that if the defendants’ liability rests wholly upon the declaration of some statute the complaint is bad. The sub- v ject was considered in De Raismes v. United States Lithograph Co., 161 App. Div. 781, where unauthorized dividends were declared by directors of a New Jersey corporation, and stockholders brought the action to enforce a liability, as to which the provisions of the New Jersey statute and section 28 of the Stock Corporation Law of this state were substantially dissimilar. It was held that while the New Jersey statute would justify the maintenance of an action so framed, the liability was not such as was contemplated by our statute, and that therefore the provisions of section
Demurrer sustained, with costs, with leave to amend on payment of costs within twenty days.