11 N.Y.S. 532 | N.Y. Sup. Ct. | 1890
The plaintiff was a trustee and stockholder of the defendant company, which, for many months prior to the application for the attachment in question, was hopelessly insolvent, and, being a creditor of the corporation, commenced this action, and obtained an attachment against the defendant upon the ground that it had unlawfully assigned, disposed of, and secreted its property, and was about to unlawfully assign, dispose of, and secrete its property, with intent to defraud its creditors. A motion was made to vacate this attachment upon the ground that the plaintiff, being a stockholder and trustee of the company, could not secure a preference over the other creditors in the payment of his debt; which motion being granted, from the order thereupon entered this appeal is taken.
The question involved in this appeal was clearly decided in Kingsley v. Bank, 31 Hun, 329. It is urged that the language of the court in that case was more sweeping than was necessary to dispose of the questions there involved, and that it cannot be regarded as controlling the decision herein, because Riggs was a director and stockholder, and presumably an active one, and that it did not appear that he had any opposition in the board of directors, and that no defense was interposed to his suit, and judgment was entered by default. In the case at bar, it is claimed that the plaintiff was not' an active trustee, and had no influence with the other trustees; that three months before he obtained his attachment he urged his co-trustees to take steps to put the company in the hands of a receiver; that during this time he did nothing to secure his debt, and in the mean time the other trustees were conspiring to defraud him and the other creditors, the company being at the time entirely insolvent, having refused the payment of its debts; and finally, the plaintiff having brought suit and obtained his attachment, the trustees put in an answer, although they allowed all other, suits to go by default. The claim of the counsel therefore seems to be that, because a trustee is not active in the management of the company, therefore the disabilities attach