176 A.D. 315 | N.Y. App. Div. | 1916
The defendant Crosby prevailed in his demurrer to the complaint, and the plaintiff failed in his motion for judgment on the pleadings. The plaintiff, as trustee in bankruptcy of a domestic corporation, brings this action against the former officers and the corporation, to nullify an alleged alienation of certain realty and certain moneys of the corporation to one of the defendants, and to recover the realty and the money that were ‘ ‘ lost to the creditors and wasted through the neglect and failure of the defendants to perform their duties as officers and directors of the corporation and to preserve the assets as a trust fund for the payment of the corporate debts.” The plaintiff alleged that the unlawful contract was made on January 25, 1915, and was completed on November 1, 1915. It appears that the petition of involuntary bankruptcy was filed on May 6, 1916, and the adjudication of bankruptcy was ^ made on the 19th of that month. But the trustee does not complain that at times named there were any creditors in existence. In Marvin v. Anderson (111 Wis. 387, 391), an action also brought by a trustee in bankruptcy, the court, per
It is contended also that this plaintiff has well pleaded, in that he may conserve the interest of subsequent creditors. There is no allegation that there were such, but we may perhaps infer that such creditors existed from the fact that the corporation was wound up by involuntary proceedings in the bankrupt’s court. While there is authority that might justify such action by a trustee in bankruptcy in protection of subsequent creditors, it must appear that the transfer was made with the design of defrauding them. (Eemington Bankruptcy [2d ed.], §1225; Beasley v. Coggins, 48 Fla. 215, cited by Eemington.) The learned counsel for the appellant lays main stress upon our decision in Halpin v. Mutual Brewing Co. (20 App. Div. 583, 586), where we declared: “ The acquiescence of all the stockholders of a corporation in the action of the directors in dealing with its assets for the purpose of depriving future creditors of payment for their just claims, will not avail as a defense to a suit brought by an officer under section 1781 of
The order is affirmed, with ten dollars costs and disbursements.
Thomas, Carr, Stapleton and Putnam, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.
See Gen. Corp. Law (Consol. Laws, chap. 33; Laws of 1909, chap. 38), §§ 90, 91.—[Rep.