Whalen v. Strong

249 A.D. 792 | N.Y. App. Div. | 1936

On reaxgument, judgment affirmed, with costs. Memorandum: Upon reargument and upon reconsideration it now appears that none of the parties to the action contends that other creditors exist whose claims should be adjudicated with the plaintiffs for the reason that such other creditors are similarly situated — and no such other creditors have come to our notice. In these circumstances we now find that plaintiffs were not required to bring a representative action and that they are entitled to recover their personal judgment from the defendants named in the seventeenth paragraph of the judgment entered herein. (Caesar v. Bernard, 156 App. Div. 724; affd., 209 N. Y. 570, and involving section 66, now section 15, Stock Corporation Law; Buckley v. Stansfield, 155 App. Div. 735; affd., 214 N. Y. 679, and involving section 90, now section 60, General Corporation Law.) Plaintiffs’ “ loss sustained ” (Stock Corporation Law, § 15) is the full amount of their judgment since an execution on the deficiency judgment against the corporation has been duly issued and returned wholly unsatisfied (Caesar v. Bernard, supra, p. 727). The portion of our memorandum heretofore written (248 App. Div. 672) commencing with the word “ however ” in line number twelve and continuing to the end thereof is deleted and should be disregarded, and instead of being modified and made interlocutory, the judgment appealed from should be affirmed, with costs. All concur, except Sears, P. J., who dissents in part and votes for modification on the law so that judgment will be made interlocutory and remitted to the Special Term to fix the plaintiffs’ loss, taking into consideration the relation of the plaintiffs’ claim to claims of other creditors, including the defendant Alvah G. Strong, in case he should be found to be a creditor. (The judgment declares fraudulent as to plaintiffs a transfer of realty.) Present — Sears, P. J., Taylor, Edgeomb, Thompson and Crosby, JJ. [See 248 App. Div. 672; Id. 811.]