15 N.Y.S. 279 | N.Y. Sup. Ct. | 1891
Lead Opinion
We think the facts set out in the complaint are sufficient to constitute a cause of action against Doran & Wright Company, Limited, as a corporation.
2. By the opinion delivered at this term in Lovelace v. Doran, 15 N. Y. Supp. 278, we have held that the complaint contains a cause of action against the individual defendants, however, that is not based upon the same contract made by the corporation. The contract made by the corporation is binding by its note. The liability of the individual defendants arises out of facts and circumstances aliunde the note, to-wit, that the individual defendants are directors of the corporation, and as such consented that the indebtedness of the corporation should be in excess of its capital stock, and, by reason of such consent, the statute of 1875, § 22, imposes a liability for such excessive indebtedness; and the plaintiff, being a holder of a portion of the excessive indebtedness created, is entitled to recover thereon. In the course of the opinion delivered by Landon, J., in Patterson v. Robinson, 37 Hun, 344, he states that “the liability of the assenting trustee is a contract,” and he adds: “The assenting trustee, knowing that the indebtedness of the company has reached at least an amount equal to the capital stock, concurs with the company in contracting further indebtedness. He knows that the statute, in case he assents, makes him also liable. He gives his consent, and thereby under the statute pledges his liability. The statute says to the assenting trustee, ‘ You may contract as many debts as you choose to become
Merwin, J., concurs in result.
Dissenting Opinion
(dissenting.) As there is no demand for relief whatever against the corporation, I do not think the complaint can be regarded as a complaint against the corporation, and hence that there was no misjoinder of causes of action.