6 Daly 364 | New York Court of Common Pleas | 1876
Lead Opinion
The amendment wag to correct a mistake in the name of the party, which the court have authority to make when it is in the furtherance of justice. It is a matter purely in the discretion of the court, and could be made after judgment and the return of the execution.
The summons was served upon the president of the company, who is also the defendant in the present action, so that it was not by amendment creating another and different action, but curing a defect in the name of the defendants, in an action which had been brought in good faith against them.
In the People v. Ames (35 N. Y. 484), the court allowed the sheriff’s return' to be amended after an action had been brought for a false return, and it was held by the Court of Appeals not only that the court had power to do this, but that the amendment gave to the return the same effect as if it had been in the amended form at the time the return was made; and a writ of replevin in the cefit was allowed, after the execution of the writ, to be amended, so as to change it into an action in the detvnet (Anon. 4 Hill, 603). It was allowed, upon showing to the court that the plaintiff had intended to bring the action in
In Porter v. Goodman (1 Cow. 414), an amendment was allowed by adding the name of a plaintiff, omitted by mistake, although an execution had been issued, levied, and an action of trespass brought by defendant, on the ground that the levy under the execution was irregular and void.
In Mitchell v. Van Buren (27 N. Y. 300), which was a judgment by confession upon a statement in writing, signed and verified by the defendant under the Code, the plaintiff was allowed to amend by inserting a new verified statement setting forth the facts more specifically in support of the judgment, after a motion had been made by a judgment creditor of the defendant to set aside the judgment for the insufficiency of the statement, the judgment being a lien on the debtor’s real estate. Judge Emmot dissented, upon the ground taken in the present case, that the court could not, by amendment, affect the rights of third parties, in respect to whose judgments the judgment confessed was, by statute, inoperative and void, the statement upon which it was entered not being in compliance with the Code. But the Court of Appeals affirmed the action of the court below, upon the ground that the courts have jurisdiction over their records, and may at all times relieve against errors and mistakes by amendments, or by allowing papers to be filed or entries made nunc fro tunc, in furtherance of justice, which was the-case there, it having been shown that the proceeding was in good faith, and that the intention of the parties was to create a valid judgment for a debt honestly due, a decision which it appears to me covers the point raised in this case.
The transfer to the company of patents, the value of which as it turned out was nothing, but “ at the time,” to use the language of the witness, “was considered invaluable,” was not,-in my opinion, a payment “in money” within the meaning and intent of the statutes (The People v. Troy Hose Co. 44 Barb. 634, 635; Haviland v. Chace, 39 Id. 283). The transfer of a patent which had no ascertained value; which, in the language of the witness, “ as it turned out was worth nothing,” cannot be regarded as “ money,” or its equivalent, because those engaged in the management of the company believe at the time it is valuable, and receive it after organization, upon some fixed estimate of its value, between them and the subscriber, as so much money. Before a thing can be regarded as money or its equivalent, it must have an actual, positive, and ascertained value —a value so thoroughly ascertained and fixed at the time, that it can at once be changed into money, of which it is regarded as the equivalent. The value of a patent right depends upon the invention. The pecuniary value of it is a mere matter of anticipation, until the utility of the invention is established by practical use, and is a source of ascertainable and known pecuniary profit. Ho such test existed here, but the value of these patents turned out to be nothing, as has been the caáe with many patented inventions.
Three of the cases cited, Beach v. Smith (28 Barb. 264); Syracuse, &c. R. R. Co. v. Gere (4 How. 392); and The Black River and Utica R. R. Co. v. Clarke (25 N. Y. 208), afford no countenance to such a construction. On the first,
The case of The East N. Y. &c. R. R. Co. v. Lighthall (6 Robt. 407) is the one chiefly relied upon by the respondent, and if the case goes to the length of upholding such a payment as is relied upon in this case, I cannot give my assent to it. It was, however, in some respects distinguished from the present case. It was an action by a railroad company to recover the amount of the defendant’s subscription, after the president, who had authority to receive subscriptions, agreed to take for the subscription one hundred shares of the stock of a coal company, at the price which the defendant had paid for that stock, and which shares the defendant transferred to the president, upon the president’s giving a written agreement to deliver to the defendant thirty shares of the capital stock of the railroad company, when the road was completed. In this case, the stock received had an ascertained value, as the defendant transferred it to the company at the price he paid for it; which distinguishes it from the present case, though I am far from admitting that the receipt of the stock of a corporation, at the price the subscriber paid for it, would necessarily be a payment in money or its equivalent, within the meaning of the statute. But, apart from that question, the Superior Court were of opinion that the question of the right of the corporation to receive this stock was not involved. They had received it through their authorized agent, in payment of the defendant’s subscription, and although they had not reaped the fruits of
The defendant was the owner of the stock issued to Harvey, the patentee, in part payment of sixteen patents. The transfer of these patents must have been received as a payment in money of the ten per cent, required to be paid by the 4th section of the act (L. 1830, p. 213), by the subscriber at the time of subscribing, upon the amount subscribed by him, and the defendant as a holder of this stock, was liable, under § 10 of amended act of 1854 (3 Edm. R. S. p. 646), to the amount of ten per cent., that amount being unpaid upon the stock held by him (Bailey v. Hollister, 26 N. Y. 112 ; Mann v. Currie, 2 Barb. 294; Mead v. Keeler, 24 Id. 20 ; Johnson v. Underhill, 52 N. Y. 203 ; Eaton v. Aspinwall, 19 Id. 119). The nonsuit was "therefore, improperly granted, and the judgment should be reversed, and a new trial ordered, with costs to abide the event.
Joseph F. Halt, J., concurred.
Dissenting Opinion
I cannot agree to that portion of the opinion of the Chief Justice which holds that the amendment of the summons, complaint, judgment roll and execution, without an amendment of the return, in the suit in the Supreme Court, in which Tasker was the plaintiff, and the Elevated Railway Company the defendant, gave to Tasker the right of action against Wallace.
With great deference I say that the cases cited do not seem
We have n o right, however, to take judicial notice of the financial embarrassments of the West Side & Yonkers Elevated Railway Company, and to assume without proof, that an execution, if one had been issued against that company under its real name, would have been returned unsatisfied, by the sheriff. Tasker’s right of action against Wallace is purely statutory. The statute provides that an action shall not lie against a stockholder until an execution against the corporation shall have been returned unsatisfied. Of course, the execution should run against the corporation by its right name. If, for instance, the statute should provide that the stockholders of the Wheeler and Wilson Company should be liable for the debts of that corporate body, in case an execution against the company should be returned unsatisfied, would it be seriously contended that a corporator’s liability would be fixed by showing the return of a writ against the Wheeler Company or the Wilson Company ?
Ag'ain, in this case, though the execution was amended, the return was not. It doubtless was in the power of the court to allow the sheriff to amend the return ; and it is probable that if the sheriff had obtained, and had exercised, the privilege of amending the return, Wallace might, in this very action, have been bound.
But the fact is that the return stands as it stood when it was made, and it certifies, in effect, that the West Side Elevated Railroad Company had no property. That was not, in my opinion, such an exhaustion of the remedy against the West Side & Yonkers E. R. R. Co., as to give Tasker a right of action against Wallace.
It seems strange to me that an order for the amendment
After the delivery of the foregoing dissenting opinion, the ■following additional opinion was delivered by
No amendment of the return was necessary. The return was indorsed upon the execution merely in these words: “ No personal property. M. T. Brennan, sheriff.” The defect in the defendant’s corporate name in the execution having been amended, it applied to the whole execution, and to everything official indorsed upon it, and as the cases cited show, the execution after the amendment is to be regarded as if it had originally been issued in the amended form. If the sheriff had returned “ no personal or real property of the West Side Elevated Railroad Company,” there might have been some question, but the defect in the corporate name having been cured by the amendment, the return is to be used as indorsed upon;an execution issued against the West Side and Y^onlaers Elevated Railroad Co. The material matter in all the cases is that the suit or proceeding was instituted in good faith against the party to whom the judgment applies by the amendment, which is allowed to supply something omitted by inadvertence or mistake. Where the defect arises under such circumstances, the whole policy of the law has been to supply it by amendment, in furtherance of justice, and to give it, by amendment, all the validity and force that would follow, if the defect had never existed. This has been the uniform policy of the law ever since the enactment of the first statute of jeofails, in the reign of Edward III. At the common law no difficulty
It is said in 1 Bolle’s Abr. 199, 1. 35, that if the mistake^ in the name of a defendant is where he is first named, it is-matter of substance, and not amendable. In subsequent cases,, however, where the mistake in the defendant’s name occurred in the original writ, it was allowed to be amended, where the attorney had given the correct name to the curator, but the mistake was in the issuing of the writ; though at first, in one.
The meaning and intent of the provisions of the statute, that an execution shall have been returned unsatisfied, in whole or in part, against the corporation (3 Edm. Rev. Stat. 446, § 10) has been fully carried out. An execution was issued, and returned against this corporation, though in the execution, and in the previous proceeding, a part of its name was omitted by mistake, and that technical omission was cured by the power of the court to supply all such defects by amendment. It was shown to the court that ordered the amendment, that the claim in the suit was against this corporation, that the summons was served upon its president, that the misnomer of the defendants arose from the inadvertence of plaintiff, and the judgment was for a debt due by the corporation. If the amendment is then to have any effect at all, it must be an effect ab initio, making the whole proceeding an action, judgment, and execution, against this corporation in form, as it was in substance, and not from the time when the amendment was allowed, but from the service of the summons, and in every stage of the proceedings, the court having power and control over it.
A motion for a reargument was thereafter made and argued by
Charles Tracy, for the motion.
Edwcurd Patterson, opposed.
The question in this case was not a question between the defendant and the corporation, or between the corporation and an original subscriber to its stock, but between a creditor of a corporation and a stockholder, who under the provisions of the 11th section of the act of 1850 (3d Edm. Rev. Stat. p. 646), is. individually liable to the creditors, to the extent of the amount unpaid upon th& stock held by him.
The statute is general in its terms, and does not, in a case where the capital has been subscribed for, and has been issued to a subscriber without the payment of the 10 per cent., limit the creditor’s remedy to an action against the original subscriber. It declares that each stockholder of any company formed under the act shall be individually liable to the creditors of such company,, to an amount equal to the amount unpaid upon the stock held by him; so that the only question that arises under this provision is whether the party sued is a stockholder ; whether any amount remains unpaid upon the stock held by him, and the extent of that amount.
It is a liability incurred by any one who becomes a stockholder of the corporation which is organized under the act, and as between a stockholder and a creditor, it is wholly immaterial whether he was a bona fide and. innocent purchaser of stock, which the vendor assured him had been paid, or which he had every reason to suppose had been paid. His remedy, if he has. been inveigled into the purchase of unpaid stock, is against the vendor (N. Y. & N. H. R. R. Co. v. Schuyler et al., 34 N. Y. 49, 50, and the cases there cited; Holbrook v. N. J. Zinc Co. 57 Id. 616).
In the present case the corporation issued the stock which the defendant held to an original subscriber, without the payment by him of the 10 per cent, in money, which the statute requires (L. 1850, p. 213, § 4). The company received in payment as the 10 per cent, a transfer of certain patent rights, which were at the time of no appreciable or known value, though supposed then to be valuable, but which afterwardsproved to be worth nothing. We held this not to he a payment of money, as the statute requires; so that the original
My impressions are that the plaintiffs, as creditors, are only entitled to be subrogated to the rights of the corporation to make claim for any amount due from a subscriber for its stock upon,his subscription or contract to pay for the stock its par amount; that a purchaser from, or assignee of, one to whom the stock has been issued conditionally, who has not assumed to pay what was due upon the subscription price, is not, within the intendment of the statute, the stockholder against whom any claim can be made for non-payment of the subscription; that the responsibilities accruing under sections 4 and 11, of chapter 140, of the Laws of 1850, are distinct in their
Reargument granted.
On- the reargument the court adhered to the opinion that the judgment ought to be reversed, and so ordered.
