Royal Trust Co. v. Harding

Newburger, J. The plaintiff, a Canadian corporation, as liquidator of the Ontario Bank of Canada, seeks to enforce a stock liability unjer the statutes of Canada against the defendants, residents of Hew York, as stockholders of the Ontario Bank. The complaint alleges two causes of action: First, upon the judgment fixing the liability at $4,750; second, upon a call for the same amount made by the- liquidator pursuant to an order purporting to establish the deficiency of the property and assets of the Ontario Bank at ninety-five per cent, of the capital stock. The defendants demur to the complaint upon the following grounds: First, lack of capacity in plaintiff to sue in H"ew York; second, no jurisdiction in this court of the subject matter. This court has power to take jurisdiction upon a foreign judgment. As was said by Mr. Justice Earl in Matter of Waite, 99 N. Y. 448: “ The following rules are to be deemed thoroughly recognized and established in this State: (1) The statutes of foreign States can in no case have any force or effect in this State ex proprio vigore, and hence the statutory title of foreign assignees in bankruptcy can have no recognition here solely by virtue of the foreign statute. (2) But the comity of nations which Judge Denio in Peterson v. Chemical Bank (32 N. Y. 21) said is a part of the common law, allows a certain effect here to titles derived under, and powers created by the laws of other countries, and from such comity the titles of foreign statutory assignees are recognized and enforced here, when they can be, without injustice to out own citizens, and without prejudice to the rights of creditors pursuing their remedies here under our statutes; provided also, that such titles are not in conflict with the laws or the public policy of our State. (3) Such foreign assignees can appear and, subject to the conditions above mentioned, maintain suits in our courts against debtors of the bankrupt [311] whom they represent, and against others who have interfered with, or withold the property of the bankrupt.” In Howarth v. Angle, 39 App. Div. 151, quoting the last case, it was held that a receiver might maintain an action in this state against a stockholder of a bank to recover the amount assessed upon a stock. See also Shipman v. Treadwell, 200 N. Y. 476; Stoddard v. Lum, 159 id. 265; Toronto General Trust Co. v. C., B. & Q. R. Co., 123 id. 37. The objection that the plaintiff as a liquidator appointed by a foreign court cannot bring this action, is, therefore, untenable. The remedy sought was that provided by the foreign statute which created the liability, and as the liability was clearly contractual this action is maintainable. Demurrer overruled, with leave to defendants to plead upon payment of costs. Demurrer overruled, with leave to defendants to plead upon payment of costs.