Wright v. Russell

155 Misc. 877 | N.Y. Sup. Ct. | 1935

McLaughlin, J.

This action is to enforce a liability of this defendant as a stockholder of an Illinois banking corporation. The defendant is a resident of New York. The present amended complaint alleges that the liability is imposed by article 11, section 6, of the Illinois Constitution. The defendant moves to dismiss the complaint on the ground that the cause of action is barred by the three-year period of limitation prescribed by section 49, subdivision 4, of the Civil Practice Act. The question presented here is whether this action, brought as it now is upon that provision of the Illinois Constitution, comes within the terms of section 49, subdivision 4, of the Civil Practice Act. To do so the action must be based upon “ a liability created by the common law or by statute.” Assuming that this provision of this State Constitution creates a liability technically distinct from either statute or common-law liability, it would seem, nevertheless, that this kind of liability comes within the meaning of this section of the Civil Practice Act. It has been held in Platt v. Wilmot (193 U. S. 602, 613) to be a liability which may be “ described as the common law.” In that sense the statute now under discussion was before the Supreme Court of the United States. It does not seem possible to distinguish that case. There are various other cases which, though somewhat different from the instant case, appear to hold that a stockholder’s liability is governed by section 49, subdivision 4 of the Civil Practice Act. (Ramsden v. Gatety, 142 Fed. 912; Whitman v. Atkinson, 130 id. 759; Seattle Nat. Bank v. Pratt, 103 id. 62; affd., 111 id. 841; Hobbs v. National Bank, 96 id. 396.) The motion is granted. Order signed.