29 N.Y.S. 636 | N.Y. Sup. Ct. | 1894
The-plaintiff, by the complaint, alleges that the Trotter Refrigerator Company was incorporated under the manufacturing, etc., act of 1848, and those amendatory of it, by filing a certificate of incorporation March 19, 1890, whereby the capital stock was fixed and limited to $75,000, divided inte shares of $100 each; that the 750 shares were issued as full-paid stock, but that it never was paid in full; that all the defendants are stockholders of the company; that in an action brought in June, 1891, in the supreme court, by Pitkin, against it, an order was made, appointing Peter R. Sleight receiver of the corporation; that he qualified, and took possession of, and sequestered, as far as possible, all the goods, chattels, property, and choses in action of the company; that “the ■said action is now pending, undetermined, and no final judgment or final decree of dissolution has been entered therein, and said corporation has not in fact been dissolved, though it is, for all practical or business purposes, dissolved;” that in September following .an interlocutory judgment or order was entered in that action,
Equitable relief of that character may properly be the purpose of an. action by a creditor of a corporation against its stockholders, in a case where they have become liable under the statute, and there are several creditors, to prevent multiplicity of suits, and thus take an account for all of them. Briggs v. Penniman, 8 Cow. 387; Pfohl v. Simpson, 74 N. Y. 137; Bauer v. Platt, 72 Hun, 326, 25 N. Y. Supp. 426. The question in the present case is whether or not the plaintiff was in a situation to maintain the action. It seeks to charge the stockholders with liability under the statute which provides that the stockholders of a company shall be liable to its creditors, to an amount equal to that of their stock, until the whole amount of the capital stock of the company shall have been paid in, and certificate thereof recorded (Laws 1848, c. 40, § 10), but that no stockholder shall be personally liable for any such debt until an execution against the company shall have been returned unsatisfied, wholly or partially (Id. § 24). This requirement preliminary to the plaintiff’s action is not alleged in the complaint, but averring that no judgment has been recovered upon its debt against the corporation, and no execution returned unsatisfied, the plaintiff alleges, by way of avoidance of the necessity for it, that a receiver appointed of the corporation has sequestered its property, and that while the corporation has not, in fact, been dissolved, it is, for all practical or business purposes, dissolved, and adds that the plaintiff has not proceeded to judgment and execution because of the order by which the receiver was appointed, restraining creditors from prosecuting the corporation. The exhaustion of remedy against a corporation, as provided by the statute, is a condition precedent to the maintenance of an action to charge its stockholders. Handy v. Draper, 89 N. Y. 334; Bank v. Bliss, Id. 338. In that respect, it is similar in effect to the requirement of judgment, and return of execution unsatisfied, against any other debtor, before proceeding by action to reach property or funds equitably chargeable with the payment of his debt. Estes v. Wilcox, 67 N. Y. 264; Adsit v. Butler, 87 N. Y. 585. And in neither case can it be dispensed with