158 N.Y.S. 428 | N.Y. App. Div. | 1916
This is an action brought pursuant to the provisions of sections 677 and 678 of the Code of Civil Procedure, in aid of an attachment. On the 5th day of May, 1911, the plaintiff McNelus commenced an action in the Supreme Court in New York county on a claim alleged to have been theretofore
On the 18th day of December, 1907, a receiver of the steel company was duly appointed by the Court of Chancery of New Jersey, and thereupon according to the statutory law of New Jersey,
A demurrer to the amended complaint herein for insufficiency was overruled at Special Term, and this court affirmed the order without opinion. (158 App. Div. 933.) It appeared by the amended complaint, which was thus sustained as sufficient, that the stock subscriptions were “tobe thereafter paid as required by the hoard of directors.” In sustaining the amended complaint, we necessarily held that the stock subscription was due, notwithstanding the fact that there was no allegation that it had been called by the board of directors; and this was upon the theory that the subscription is to be deemed to have been payable on demand. (See Howland v. Edmonds, 24 N. Y. 307.) The amended complaint did not show the receivership. That was pleaded and proved by the defendants’ Any question there may have been, however, with respect to the stock subscription being due without a call has been removed by the order of the New Jersey court directing the receiver to sue therefor, which was prior to the time the warrant of attachment was levied. (See Armstrong v. Danahy, 75 Hun, 405.)
The learned counsel for the respondents argues that the liability of their testator on the stock subscription is enforcible
It is also contended on the part of the respondents that the plaintiff McNelus was estopped from attaching the liability of
The respondents further contend that at the time the attachment was levied the cause of action on the stock subscription had passed from the corporation to the receiver. So far as it was competent for the Legislature of New Jersey to transfer the property of the corporation to the receiver, owing to the insolvent condition of the company, there can be no doubt but that such is the effect of the New Jersey statute. The cause of action, however, on the stock subscription against a resident of this State was, for the purposes of our attachment law, a debt due and owing to the corporation here; and by the express provisions of said section 646 of the Code of Civil Procedure, it was subject to levy under an attachment, and with respect to creditors of the corporation pursuing their legal remedies in the courts of this State, effect is not given here to the involuntary transfer of the property of the debtor by virtue of foreign statutory law. (Hammond v. Nat. Life Assn., 58 App. Div. 453; appeal dismissed, 168 N. Y. 262; Hibernia Nat. Bank v. Lacombe, 84 id. 367, 384; Barth v. Backus, 140 id. 230; National Park Bank v. Clark, 92 App. Div. 262. See, also, Mabon v. Ongley Electric Co., 156 N. Y. 196; Hallenborg v. Greene, 66 App. Div. 590, 597, 599.)
In the view we take of the case, as herein indicated, it is unnecessary to consider whether if the contentions made in behalf of the respondents were tenable, they could be effectually interposed now after the recovery of judgment on the debt owing to appellant by the corporation, with the attach
We are asked on groimds of comity to remit the creditor of the corporation to the jurisdiction of the courts of Hew Jersey, where he would be permitted to participate with the other creditors of the corporation in any of its assets; but the question of comity was not overlooked in the decisions above cited, and it has long been the established rule in this State that where the involuntary transfer has taken place here the right of creditors, whether domestic or foreign, to pursue legal remedies and acquire by attachment in foreign jurisdictions a lien on the property of the debtor superior to the title previously acquired by the involuntary transfer here is recognized. (Warner v. Jaffray, 96 N. Y. 248; Barth v. Backus, supra.) These precedents are controlling, and this court is not at liberty to consider the question de novo. In Wulff v. Roseville Trust Co. (164 App. Div. 399) we were able to distinguish them, and on motion of the assignee of the assets of a Hew Jersey trust company, the affairs of which had been liquidated, we vacated an attachment obtained here by the assignee of a depositor with the insolvent trust company; but we so decided on the ground that the deposit was made subject to the laws of Hew Jersey, by which, in case of insolvency, the assets became a trust fund for the benefit of all creditors. We do not consider that our decision in that case is applicable here, and evidently counsel for respondents does not, for it has not been cited. So far as appears, it is immaterial to respondents to whom they respond on the liability of their testator, and there can he no doubt but that a recovery and satisfaction in this action will fully protect them.
It follows that the judgment should he reversed and a new trial granted, with costs to appellant to abide the event.
Clarke, P. J., Scott, Page and Davis, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.
See N. J. Gen. Corp. Law (Laws of 1896, chap. 185), § 68; 2 Comp. Stat. N. J. 1644, § 68. - [Rep.