5 N.Y.S. 587 | N.Y. Sup. Ct. | 1889
In regard to the first cause of action the letter of defendant to Burt, dated August 11, 1881, is very full. It authorizes him to act for the company in completing existing contracts for the construction; in acquiring rights of way; in obtaining necessary engineering; authorizing him to draw for necessary disbursements. It appears, too, that a large amount of drafts drawn by Burt on the defendant for construction were paid prior to February, 1882. Now, there is certainly some evidence given by the plaintiff that he did work for defendant under Burt during the period embraced in the first alleged cause of action. He seems to have been also employed by a' company other than defendant; but it is not impossible that he should have done ■work for both. It does not appear by the case that all the evidence is returned. Porter v. Smith, 107 N. Y. 531, 14 N. E. Rep. 446. Indeed, we are not able •to find that the case has ever been settled by the referee. Code Civil Proc. § 997, rule 35. At any rate, under that decision, we are not required to re
The second cause presents very different questions. The plaintiff’s claim is based on the following grounds: (1) That between June 1, 1877, and May 1, 1879, plaintiff did work for the Boston, Hoosac Tunnel & Western Railroad Company, for which they owed him; (2) that Ames and Dexter were stockholders, and that, having paid only 10 per cent, of their subscriptions, they were liable to plaintiff for this indebtedness; (3) that by the agreements between Ames and Dexter and Burt of February 9 and April 9,1881, Burt became personally liable to plaintiff to pay him the indebtedness owing by the Boston, Hoosac Tunnel & Western Railroad; (4) that by the agreement of May 26,1881, between defendant and Burt, defendant became liable to plaintiff to pay him said indebtedness; (5) that this liability exists notwithstanding the receipt and acquittance executed June 15, 1881, between Ames and Dexter and the defendant, of all liabilities under the agreements of February 9 and April 9,1881. The liability of Ames and Dexter to plaintiff is claimed to arise under section 10 of the general railroad act, as amended by Laws 1854, c. 282. This makes a stockholder liable to the creditors of the company to an amount equal to the amount unpaid on the stock held by him, until the whole amount of the capital stock so held by him shall have been paid to the company. It appears that Ames was a subscriber for 200 shares ■ of $100 per share. It does not appear that Dexter was a subscriber for any stock; nor does the referee find that Dexter was the owner of any shares, and we find no proof on that point. The referee finds that not more than 10 percent. of the stock held by Ames and Dexter had been paid on or prior to June 15, 1881. We find no evidence given on that point, unless it be the fact that the articles of association state that 10 per cent, has been paid. The counsel for the plaintiff urges in his brief that, as there was no proof given of subsequent payments, the presumption is that no more had been paid. If this were an action by the Boston, Hoosac Tunnel & Western Railroad Company against Ames, to recover his unpaid subscription, of course it would be for Ames to ■ prove payment as a defense’, and not for the company to prove non-payment as a ground of action. But the present action is quite different. It is necessary for the plaintiff, as the first link in the chain, to show affirmatively that Ames and Dexter were still liable on unpaid subscription. He has no right to any presumption, but must prove the fact. This he has not done. Furthermore, he furnishes no proof of Dexter’s liability to pay anything, as he does not show him to be a stockholder. Whether, under the decision in Christensen v. Eno, 106 N. Y. 97, 12 N. E. Rep. 648, Dexter would be liable on-unpaid stock transferred to him without any agreement on his part to pay, we need not decide.
There is another difficulty, and that is that the referee only finds that the stock had not been fully paid prior to June 15, 1881. How, the liability imposed by the statute ceases when the whole amount of the capital stock so held by the stockholder shall have been paid to the company. For anything which appears or is found, the stock of Ames and Dexter has been fully paid. It may be said in answer to this that the plaintiff’s claim against this defendant is based on the liability of Ames and Dexter as it existed February 15, 1881. But that liability was limited, as above stated. If the amount payable on their stock should be thereafter paid to the company, Ames and Dexter could not be required to pay it again, to creditors. All that creditors can ask in this