95 N.Y.S. 849 | N.Y. App. Div. | 1905
I think this action can be maintained under sections 1781 and 1782 of the Code of Civil Procedure. Subdivisión 2 of section 1781 provides that an action may be maintained against one or more trustees, directors, managers or other officers of a corporation to procure a judgment “ compelling" .them to pay to the corporation, which they represent, or to its creditors, any money, and the value of any property, which they have acquired to themselves, or transferred to others, or lost, or wasted, by a violation of their duties; ” and section 1782 provides that an action may be brought as prescribed in subdivision 2 of section 1781 by a' creditor of the corporation. The complaint alleging facts which make it impracticable to obtain a judgment against the corporation, any question as to the necessity of alleging that such judgment had been obtained and execution thereon returned unsatisfied is not presented; the dissolution of-the corporation and the appointment of a receiver of its property excuse the plaintiffs from enforcing their remedy against the corporation prior to the commencement of this action. (Hunting v. Blun, 143 N. Y. 511; Hirshfeld v. Bopp, 145 id. 84.)
The only serious question is whether the receiver of the corporation was a necessary party to this action. We have held in the case of Michel v. Betz (post, p. 241) that in an action brought by a stockholder to compel the defendant to account, the receiver of the corporation was a necessary party; and I think that the rule adopted in that case should be applied in this, and that, the receiver of the corporation appointed upon its dissolution was a necessary party defendant to this action. Upon the dissolution of the corporation and the appointment of a receiver, all of the property of the corporation vested in the receiver who was charged with the duty of distributing it among its creditors and paying any sur
There is also a demurrer upon the ground that causes "of action have been improperly united, but I. think that all of the allegations of the complaint are germane to an action brought under sections 1781 and 1782 of the Code of Civil Procedure, before cited, to require the defendant to account for "the moneys and property in his hands which, it is alleged, he has wrongfully acquired. There is an allegation in the 7th clause of the complaint from which it might be possible to spell out a cause of action against this defendant based 'upon the ground that he had assumed the .indebtedness of the corporation and had promised the plaintiffs to pay the amount of their indebtedness, and as the demand for judgment is to. recover a sum of money against the defendant, it may be that there is alleged in this complaint a cause of action upon contract based upon the assumption by the defendant of the debts of the corporation, but as the demurrer does, not specifically set up such a misjoinder of causes of action as a ground of demurrer, that question need not be considered.
For the reason stated, I think the receiver was a necessary party and that the judgment appealed from should be reversed, with costs, and the demurrer sustained, with costs, with leave to the plaintiffs to amend upon the payment of costs in this court and in the court below.
O’Brien, P. J., Patterson, McLaughlin and Clarke, JJ., concurred.
Judgment reversed, with costs, and demurrer sustained, with costs, with leave to plaintiffs to amend on payment of costs in this court and in the court below.