122 N.Y.S. 620 | N.Y. App. Div. | 1910
The complaint was dismissed upon the ground that the alleged cause of action was barred by the Statute of Limitations. The correctness of. this conclusion and the further question as to whether the case presented, is within the provisions of section 1Ó1 of the Decedent Estate Law (Consol. Laws, chap. 18; Laws of 1909, chap. 18; formerly section 1843 of the Code of Civil, Procedure) constitute the only questions requiring our consideration. The facts aré not disputed,
. The defendant’s testator was a stockholder, to-the extent of $15,000, of the Harlem River Bank, which became insolvent on May 2,1894. On October 22, 1895, an action was brought by several creditors (including the plaintiff in this action) against the stockholders of said bank to enforce their statutory liability under the Banking Law (Gen. Laws, chap. 37 [.Laws of 1892, chap. 689], § 52, since amd. by .Laws óf 1897, chap. 441, and revised into Consol. Laws, chap. 2 [Laws of 1909, chap. 10], §§ 2,71), which was vigorously defended by defendant’s testator up to the time of his death on August 16,1897. He left a last will and testament in and by which- he made the defendant his sole devisee, legatee and executrix. The will was admitted to probate, thé defendant qualified, and in her representative capacity was substituted as a defendant in the pending action in place of her deceased husband, and continued the defense he had interposed.
A creditor’s action to enforce the liability of stockholders is one in equity, as has been repeatedly held, and the fact that the plaintiff is here seeking to enforce such liability against the devisee of a deceased stockholder does not change the equitable' nature of the action or the ten years’ limitation applicablé thereto. (Mortimer v. Chambers, 63 Hun, 335; Adams v. Fassett, 73 id. 430; De Crano v. Moore, 50 App. Div. 361; Avery v. Avery, 119 id. 698.) The contention that the six-year Statute of Limitations is applicable in. this action is not sustained by the authorities cited, In . none of them had an action been commenced against the testator in his life.: time. - The actions were based upon original promissory notes and other obligations of the testator, and it was held that the six-year statute ran against, such obligations and' causes of action based thereon. They can only be regarded as authority for the proposition that where no action is brought to enforce the obligation of a debtor, in his lifetime an action against his devisee to enforce such obligation may be successfully defended by the interposition of the statute of which the debtor if living, might have availed himself. • The -fact' that the defendant had sold and conveyed the devised property and by so doing transferred the creditor’s remedy to a personal one-against the devisee for its valué does-not change the nature of the action which yet remains one equitable in its nature. The necessity of-establishing the indebtedness of defendant’s, testator as a stockholder of the bank arose in the case at bar" because
The argument that for three years after the issuance of letters testamentary the creditors might have proceeded in Surrogate’s Court to sell the real property of the testator for the payment of his debts (Code Civ. ProC. § 2749 et seq.) adds' no weight to the respondent’s main contention. It appears from the record that during five years following the death of the testator and issuance of letters to the defendant the action brought to establish the liability of the decedent as a stockholder was being strenuously resisted by the defendant as executrix, and it was hot until the judgment was rendered therein on December 15, 1902, that the creditors were in a position to avail themselves of the provisions of the Code of Civil Procedure under which this action was instituted, or even to file a claim against the estate, for until then they could not tell what amount, if any, would be found due from the testator, and during
I think that the Statute of Limitations applicable to the case at. bar is ten years. (Code Civ. Proc. :§ 388.) The defendant’s testator died August 16, 1897. Final judgment against the defendant' as his executrix was entered on December 15, 1902. This action was commenced on July 21, 1907; at that: time' the Statute of Limitations, whether it commenced, to: run. at the death of the testator or at the time of the entry of such judgment, had. not barred the plaintiff’s cause of action and constituted no defense thereto. .
The contention that the statutory liability of the 'testator'as á stockholder • of the Harlem River Bank cannot in any event be: enforced against his devisee (the defendant) does not impress us as a: maintainable proposition of law. It is founded upon the assump-' tion that such liability does not arise “ by simple contract or by ■ specialty,” which constitute the only class, of debts recoverable under the provisions of section 101 of the Decedent Estate Law. In Matter of Oliver Lee & Co’s Bank (21 N. Y. 9) it was held that the effect of the acceptance of a charter or incorporation'under: a general statute, and the issuance of stock, created a contract' between the stockholders and the State, and in Barnes v. Arnold (45 App. Div. 314; affd., 169 N. Y. 611) that when the stockhold-' ers of a bank accept the privileges and franchise extended to-them-under the general laws of the State, they enter into a contract with the State. (See, also, Bailey v. Hollister, 26 N. Y. 112; Union Hotel Co. v. Hersee, 79 id. 454.) In De Crano v. Moore (supra) it was held that the debt of a testator arising out of trust-relations-■ was properly enforcible from the property devised; that the fact" that there was a fiduciary relation between the parties did not alter the nature of the obligation, and that the terms “ simple contract ” and “specialty” used in the statute comprised every kind of contractual obligation. When a person becomes a stockholder of a bank his relations with the bank are contractual; he assumes the liability and obligations placed upon stockholders by the' Banking ■ Law, and impliedly contracts—¡'whether with the State, bank or its creditors, is immaterial — that he'will pay to -its Creditors his equal and ratable proportion of the debts of the bank if it becomes ihsol
The judgment must be reversed and a new trial granted, costs to abide the final award of costs.
Hirsohberg, P. J.‘, Jenks, Burr and Carr, JJ., concurred.
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Judgment reversed and new trial granted, costs to abide the final award of costs.