Rensselaer & Washington Plank Road Co. v. Wetsel

By the Court, Parker., P. J. I see no reason for questioning the correctness of the decision of the referee in receiving in evidence the certified copy of the articles of association. It was a correct copy of the articles as they were when filed. Nor can it at all avail the defense that William Van Yeghten had originally subscribed for ten shares, and that the subscription was erased before the articles were filed. I agree with the referee that it is fairly inferable, from the evidence, that the erasure was made with the knowledge of the defendant, and of all the directors, and at Yan Yeghten’s request; The evidence also shows that it was not done with any fraudulent intent. The subscription by the defendant for twenty shares of stock is alleged in the complaint, and I think is substantially admitted in the answer. The denial at first attempted to be made in the answer is somewhat qualified, and hardly sufficient; but the defense set up in a later part of the answer is, the alteration of the route “ since this defendant subscribed the said articles of association.” If, however, there were any doubt as to the admission, the proof seems to supply the defect. It was shown by the certified copy of the articles that a subscription for twenty shares was made in the name of the defendant ■ and it was proved by the secretary and treasurer that the signature was recognized by the defendant as genuine, by his paying the five per cent on the stock and acting with the board of directors. It is too late now to question the doctrine that, on a subscription for stock, there is an implied promise to pay for it. • The remedy for non-payment is not confined to a forfeiture of the stock, though such a remedy is expressly given by the statute. (Sess. Laws 1846, p. 216, § 39. 3 Sand. 161. 2 Wend. 567. 14 id. 23. 21 id. 296. 3 Ala. Rep. 660. 2 Bibb, 576. 12 Conn. Rep. 500.) In addition to these there have been cases decided by this court under the act in question, which are not yet reported. The remedy by forfeiture is merely cumulative. Nor was a subscription to the full amount of the stock nameci [65] in the articles as the stock of the company, a condition precedent to the recovery. (Hamilton Plank Road Co. v. Rice, 7 Barb. 166, 167. Laws of 1847, p. 217, § 2.) [Albany General Term, September 3, 1855 The allegation in the complaint that the directors, on the 22d of October, 1850, required payment of the sum subscribed, on or before the 24th of November, 1850, was not denied in the answer, and was therefore admitted. And it was in the same way admitted by the pleadings, and was also proved, that notice of the paymeqt thus required and of the time and place when and where the same was to be made, was duly given to said defendant, in the manner prescribed by the act. The defendant failed to sustain his allegation that the directors fraudulently changed the route of the road. The" change appears to have been properly and legally made, and was within the description contained in the articles of association. The judgment on the report of the referee should be affirmed. Parker, Wright and Watson, Justices.]