125 N.Y.S. 637 | N.Y. App. Div. | 1910
Plaintiff’s judgment is based upon defendant’s liability as the record holder of .one share of stock of the German Bank, having a par value of $1,000.
The German Bank was organized in 1871 under the State Banking Laws, ahd had a capital stock of $100,000 divided into 100 shares of $1,000 each. It continued to do business at Buffalo, 1ST. Y., until December 5, 1904. Later in that month it was duly adjudged to be insolvent, and plaintiff was duly appointed receiver of its property. The assets of the corporation proved deficient by more than $1,000,000 for the payment of its debts and liabilities exclusive of its capital stock. From August 4, 1904, down to the time of the dissolution of the corporation, defendant Werner appeared upon the books of the corporation as the holder of one share of stock. He was the record holder thereof, but the court has found that prior to December 5,1904, Werner had indorsed the certifícate representing his share of the stock to Richard Emory, as agent for Arthur E. Appleyard, and that thereupon Appleyard became the owner in fact of said one share of stock.
Werner, as the record holder of the share of stock, was liable to plaintiff to the extent of its full par value. (Banking Law [Laws of 1892, chap. 689], §§ 52, 53, as amd. by Laws of 1897, chap. 441; Stock Corp. Law [Laws of 1890, chap. 564], § 29, as amd. by Laws'of 1892, chap. 688; Laws of 1900, chap. 128, and Laws of 1901, chap. 354; Shellington v. Howland, 53 N. Y. 371,376.) That Appleyard as the owner in fact of this share was under the statutes above referred
The liability which the receiver sought in this action to enforce against Appleyard was as the owner in fact not alone of the single share of stock in the name of Werner, but forty-nine other shares standing in the names of other defendants. So that Appleyard’s apparent liability as stockholder was for the sum of $50,000. Plaintiff was paid the $1,000 and gave an acknowledged receipt under seal therefor. This action was then pending against Apple-yard as well as the other defendants. Ho judgment against him has ever been taken, though the' right to take judgment was reserved by the terms of the receipt. The right of plaintiff to discontinue the action against him was also reserved. We need not determine
The same principle is recognized and applied in case of a release of a joint debtor, or joint tort feasor. (Gilbert v. Finch, 173 N. Y. 455, 463.)
The judgment should be affirmed, with costs.
All concurred.
Judgment affirmed, with costs.