77 N.Y.S. 488 | N.Y. App. Div. | 1902
At the close of the testimony counsel for the plaintiffs asked, the court to direct a verdict for the plaintiffs. This motion was denied upon the ground that there was a question of fact as to whether the judgment which the plaintiffs had obtained against the Metropolitan Messenger Company had been paid. The court submitted that question to the jury, saying: “ If the note was actually paid, and the parties have such interest as to distort and have distorted the transaction, then you will find a verdict for the defendant. If, on. the other hand, the note has never been paid, if it was an obligation of the corporation and one' which this defendant is liable for, being money used in the business in the corporation and this note became a debt of the corporation, then you will find a verdict for the plaintiff for $540.” The jury found a verdict for the defendant. Thereafter the plaintiffs made a motion for a new trial on the ground that the verdict was contrary to the evidence, which was denied, and the plaintiffs appeal from the order denying the motion. The first •question presented is whether there was evidence to sustain the verdict.
The action was brought by the plaintiffs as judgment creditors of "the Metropolitan Messenger Company, a corporation organized under the laws of this State, to enforce the obligation imposed upon the stockholders of the corporation by section 54 of the Stock Corporation Law (Laws of 1892, chap. 688). That section provides : “The
■ - It was this transaction which the court submitted to the jury, for them to determine whether or not it was a payment of the demand ¡ of these plaintiffs against-the corporation. We.think that the find-, ing that this operated as a payment to the plaintiffs of their demand 1 against the corporation was not only not sustained by the evidence, but that there-was no evidence of such a payment which justified' the court in submitting the question to the jury. There is.not the. slightest évidence that the corporation ever paid this judgment or any. part thereof. The plaintiffs called Klock as a witness, and he testified without contradiction that the stock' deposited with the. plaintiffs to secure the loan made to the company was his individual property, in which the company had no interest. The proceeds of.. that, stock .when sold belonged to Klock and not to the company,, and considering that the plaintiffs held a portion of the proceeds of that stock as security for their judgment against the. company, that, was not a payment of the judgment, so as to discharge the company’s liability therefor. Whether Klock was believed or not, there, was absolutely no evidence to sustain -a finding that the company-had paid the judgment or discharged its obligation to the plaintiffs.. We think, therefore, that the finding was entirely without support from the evidence. .
■ The defendant also claims that at the time this action was commenced there was no statute in force under which he was liable to-a creditor of the corporation. It did not appear when the Metropolitan Messenger Company was incorporated or under what act,, the allegations of the complaint being that it is a corporation, organized and existing under: the laws of the State of New York,; and was engaged in business in the county of New York from about-October 6, 18.96, to December 12, 1898. It seems that on the 17th day of March, 1897,' the capital stock of the company was increased, from $10,000 to $60,000 (Hallett v. Metropolitan Messenger Co.,. 69 App. Div. 258); that such increase consisted of 500 shares of the par value of $100 each; that of that 500 shares there were: transferred to the defendant 60 shares of .the par value of $6,000,. for which the defendant paid to the company the sum of $3;200,
The defendant claims that this provision only applied to the action of a creditor against a director under the existing law, but it would seem as though it was the intention of the Legislature to protect all the rights of the creditors of a corporation and the rights of a stockholder against- a director. Section 31 of the Statutory Construction. Law (Laws of 1892, chap. 677) provides that the repeal of a law .“shall not affect or impair any act done or right accruing, accrued or acquired, or liability, penalty, forfeiture or punishment incurred prior to the time such repeal takes effect, but the same may be asserted, enforced, prosecuted or inflicted as fully and to the same extent as if such repeal had not been effected ; ” and assuming that the effect of the amendment by the act of 1901 would be to repeal section 54 of the Stock Corporation Law, under this provision of the Statutory Construction Law, the repeal of the section would not affect the right of a creditor to enforce the obligation of stockholders which existed at the time the amendment took effect.
It follows that the judgment and order appealed from should be reversed and. a new trial ordered, with costs to the appellant to abide the event.
Van Brunt, P. J., Patterson, Hatch and Laughlin, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.