Full text
Albert Sanders, as Receiver in Proceedings Supplementary to Execution under a Judgment Recovered by Bernard Latiner, and Judgment Creditor, against Wonderland Amusement Company, Inc., and Judgment Creditor v. Frederick F. Proctor, Jr.
Opinions in this case
- Majority
- Dissent — Smith
Page, J.: I think the judgment should be affirmed. The express contract was between Morris and Proctor and the corporation cannot take advantage of it on the theory of Lawrence v. Fox (20 N. Y. 268) because there was no obligation between Morris and the company. This was unissued stock, not treasury stock, i. e., stock which had been duly issued and turned back into the treasury of the company. The stock was not legally issued. It could only be issued for cash or labor or property which it concededly was not.
It was not issued on subscription for no subsóription was made and ten per cent was not paid. (See Stock Oorp. Law [Consol. Laws, chap. 59; Laws of 1909, chap. 61], §§ 53, 55.) While the delivery and acceptance of treasury stock would raise an implied obligation to pay, no such obligation, as I understand, is raised by the delivery of certificates of unissued stock to one man on the request of a third.
It was pursuant to the agreement between Morris and the defendant that the stock was issued and not at the instance and request of the defendant. As between the company and the defendant there was no obligation, express or implied, to pay for the stock to the company. Laughlin and Scott, JJ., concurred; Clarke, P. J., and Smith, J. dissented.