Calkins v. Atkinson

Ingraham, P. J. The plaintiff, as receiver of the North American Lloyd, seeks to recover from the defendants, as stockholders of the company, the amounts they are respectively liable for as stockholders, and for this purpose has made the creditors and stockholders parties, and obtained an injunction restraining the creditors from prosecuting the stockholders, and restraining the stockholders from paying any debts of the corporation. Subsequently, on motion, the .injunction was dissolved as to the Manhattan Oil Company, and from that order the plaintiff appeals. I have much hesitation as to maintaining this action so far as the rights of the creditors are involved. It may be that some of the stockholders have not paid up the full amount of the capital stock subscribed for by them, and, if so, the company could have brought actions against them for the balance due by them. In such cases, the right to collect such sums would pass to the receiver, and he could maintain actions therefor. But such actions must be separate, and no action [16] could be maintained against all of the stockholders jointly. (Rankin v. Elliott, 16 N. Y. 377.) The statutory liability given by the seventh section of the act under which the corporation was formed, makes the stockholders responsible to the creditors in a sum equal to the amount of stock held by them respectively. For this liability no one but the creditor had the right to sue. The company never could enforce the payment, and, under ordinary circumstances, the receiver would only acquire the rights of the corporation. Under the act of 1852, p. 67, a receiver appointed on the sequestration of the property of a corporation to collect a judgment, is vested with the powers of a receiver in the voluntary dissolution of a corporation. How the receiver in the present case was appointed does not' appear. The complaint says he was appointed in an action then pending, upon his executing a bond, and that afterward a judgment was rendered dissolving the corporation, and continuing the plaintiff as receiver. I should be disposed to hold that there was no authority for this action in the name of the receiver, to the exclusion of creditors, were it not for the views expressed in the case of Story v. Furman (25 N. Y., 214), as to the powers of receivers.in the ease of insolvent corporations. Smith, J., says: I cannot see why the order appointing the plaintiff receiver did not vest him with ample authority to enforce the stockholder’s liability under the statute. Such liability is clearly a fund in equity for the payment of the debts of the corporation. * * * The appointment of a receiver was the only appropriate mode to reach and collect this equitable fund (the personal statute liability of the stockholders) for distribution among the creditors. The General Term of this district lately held that one stockholder who had been sued for a debt due by the corporation, could maintain an action in equity against the other stockholders, to compel contribution, Aspinwall v. Torrance & al., (1 Lansing, 381); and if the case of Story v. Furman [17] & al., above cited, is to be considered as applicable to this case, there is no good reason why the action should not be maintained against all the stockholders for that purpose. The maintaining of such an action against all the stockholders for the benefit of all the creditors equally, renders it proper to restrain the creditors from separate suits for the ix covery of their individual claims. There could be no equal distribution of this fund among the creditors, if individual creditors are allowed to obtain judgments against some of the stockholders in advance of the residue. The order appealed from must be reversed. Order reversed.