58 A.D. 316 | N.Y. App. Div. | 1901
This action was brought to enforce against directors of the John Stephenson Company, Limited, a liability growing out of an alleged violation of the provision of the 24th section of the Stock Corporation Law (Laws of 1892, chap. 688), by which it is enacted that no stock corporation, except a moneyed corporation, shall create any debt, if thereby its total indebtedness not secured by mortgage shall exceed the amount of its paid-up capital stock, and the directors creating or consenting to the creation of any such debt 'shall be personally liable therefor to the creditors of the corporation.
It appears by the complaint that the. plaintiff sues in behalf of himself and all other creditors of the Stephenson corporation; that the indebtedness of that corporation to. the plaintiff arose between the 1st and the 23d days of October,' 1898; that the defendant Pugh was a director of the corporation prior to March, 1897, and that he remained a director until August 6, 1898. It is further alleged in the complaint that during the period of Mr. Pugh’s directorship debts and liabilities were created by the corporation, not secured by mortgage, in excess of. its capital stock ; that the defendant Pugh assented to the creation of some j>ortion of that indebtedness; that other defendants were directors of the corpora
The nature of the liability of directors of corporations for a violation of the provision of the 24th section of the Stock Corporation Law was fully defined in the case of National Bank v. Dillingham (147 N. Y. 603). It was there held, in effect, that the liability of all directors constitutes a fund to be established by a suit in equity, and to be distributed after an accounting, among the creditors of the. corporation, according to their several rights. Those who are entitled to enforce the liability, that is to say, those to whom the right of action is given, are not only creditors holding debts created in violation of the provision of section 24 of the Stock Corporation Law, but “the benefit of its provisions is given in terms to the ‘ creditors of the corporation ’ and not to a part of them. The language includes all the creditors. * * ^ The fair construction of the statute is that it imposes a liability upon the trustees creating or assenting to debts in excess of the capital to the extent of such excess', not for the benefit of any particular creditor, but for the benefit of all, and their liability is in equity a fund to which all the creditors may resort for the satisfaction of such debts as the corporation itself fails to pay, to be shared in by all in proportion to the debt remaining unpaid. It follows that it must be enforced in equity in a suit where all the creditors and the corporation itself are parties, or represented, where an accounting can be had, all the facts ascertained and the equities adjusted.”
There is, therefore, one fund to be created; a fund.available to
It is urged-that the plaintiff Whitney cannot maintain this action because he is not a judgment creditor; but a satisfactory reason for bis not obtaining a judgment and issuing execution is given in the complaint, namely, that he was enjoined and that the injunction -was operative when this action was brought. In that respect, the case differs from National Bank v. Dillingham (supra). There it was held that the bare fact that sometime before the action was commenced an injunction was granted upon some ground or for some reason, as to which the complaint was silent, was not sufficient to excuse the omission to proceed against the corporation, the principal debtor. Here we have a valid legal obstacle to the enforce
. The interlocutory, judgment overruling the demurrer of the defendant Pugh to the complaint must he affirmed, with costs* with leave, however, to said defendant, upon payment of costs in this court and in the court below, to answer the complaint within twenty days after the service of notice of entry of judgment upon this decision.
Van Brunt, P. J., O’Brien, Ingraham and McLaughlin, JJ., concurred.
Judgment affirmed, with costs, with leave to defendant to answer in twenty days on payment of costs in this court and in the court below. .