140 N.Y.S. 9 | N.Y. App. Div. | 1913
The plaintiff is a Canada corporation. It is alleged that the Ontario Bank was prior to October 13, 1906, a corporation organized under the laws of Canada, doing business in Toronto;
The first cause of action is upon an alleged judgment, the allegations relating thereto being as follows: “ YH. That on or about the 14th day of February, 1911, after due service of notice of application therefor had been made on the defendants, pursuant to an order therefor made as provided by said Winding-up Act and the amendments thereto, an order was duly made and entered in said proceedings directing that the above-named defendants be settled on the list of Contributories as Contributories in their own right in respect of fifty shares of the capital stock of the above named bank, and that said defendants as such Contributories pay, on or before the 4th day of March, 1911, to the plaintiff the sum of Four thousand seven hundred and fifty dollars ($4,750). VIII. That under and pursuant to the express provisions of said Winding-up Act and the amendments thereto every order of the court or judge for the payment of money or costs, charges or expenses made under said Act is deemed a judgment of the Court and may be enforced against the person or goods and chattels, lands and tenements of the person ordered to pay, in the manner in which judgments or decrees of any superior court obtained in any suit may be enforced.”
The second cause of action is to recover the amount claimed to be due upon defendants’ contractual liability as stockholders of the insolvent bank. After reiterating the first six paragraphs of the first cause of action, the complaint proceeds: u II. Alleges that prior to the 5th day of November, 1906, and at the time of and prior to suspension of payment on October
The demurrer attacks the complaint and each cause of action:. for insufficiency, and also upon the ground that the court has no jurisdiction and that plaintiff has no legal capacity to sue.
The objection urged to the first cause of action is that it is not alleged that the plaintiff ever obtained, in the Canadian action, jurisdiction of the person of the defendants. We are of the opinion that this objection is not well taken. It is alleged that the High Court of Justice in which the judgment was recovered is a court of general jurisdiction and that “ due service of notice of application ” for said judgment had been made on defendants. These allegations are sufficient to establish prima facie the regularity and validity of the foreign judgment, leaving it to defendant to plead such facts as may tend to show that jurisdiction of the person was never obtained in the Canadian court.
As to the second cause of action it must now be regarded as well settled that a foreign trustee, receiver or liquidator may, in a proper case, sue in our courts a stockholder resident here, for his proportionate liability as such stockholder. (Howarth
It follows that the order appealed from must be affirmed, with costs, with leave to defendants to withdraw the demurrer and answer within twenty days upon payment of all costs.
Ingraham, P. J., McLaughlin, Clarke and Dowling, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements, with leave to defendants to withdraw demurrer and to answer on payment of costs.