99 N.Y.S. 407 | N.Y. App. Div. | 1906
The defendants are stockholders of a full liability corporation, and the action is to recover rent, taxes and assessments
.<■ But bé thatsas .it may, we think it clear that notwithstanding' the application of said section .55, the complaint still states a good cause o.f -action, for the reason that the debts sued for were hot contracted more. than, -two- years before they were "payable within the meaning of-.-the statute.. Ró.. debt was contracted when the leases were . assigned to the defendants’ corporation. A contingent liability was incurred which.only ripened into a .debt as' the premises were used, or, the rent being payable quarterly in advance, as the rent of each" quarter fell due, The distinction between debt, and liability has frequently been recognized by law writers, but" the subject requires" no extended discussion from this - court as there is clear authority in this State controlling upon us. In Garrison v. Howe (17 N. Y. 458) it was held, under a statute imposing individual liability upon ' trustees,, by" reason of failure to filé and publish the .annual report, for debts contracted during .a default, that under a contract for the salé and .delivery of personal property at a future day the debt is not contracted within the meaning 'of the statute until the delivery of. the property. This.ease is cited with approval, and the doctrine reaffirme.dfin Gold v. Clyne (134 N. Y. 262), and the same rule was" followed in- Whitney Arms Co. v. Barlow (68 id, 34). It is true that these cases strictly .construed statutes held to bé. penal, and the decision in each case was in fav.or of the. stockholder, but the.rule •must, work both, ways, and if the debt, is to be regarded as , cqiitracted -at the time -the contingent liability.matures into an existing indebtedness, when-¡Such construction will - relieve á stockholder
The judgment and order must be reversed and a 'new trial"granted, costs to abide the event.
Hooker and Rich, JJ., concurred; Jenks and Gaynor, JJ., concurred on second ground discussed in the opinion.'
Judgment and order reversed and new trial granted, costs to abide the event.