Milliken v. McGarrah — 159 A.D. 725

Majority

p. 725

Foster Milliken, Appellant, v. Gates W. McGarrah and Others, Defendants, Impleaded with International Bank, Respondent.

First Department,

December 31, 1913.

Headnote

Corporation — right of stockholder as pledgee to recover for injury to his stock.

Although a stockholder who has pledged his stock has no individual right of action for an injury to the corporation common to all stockholders, although such injury may incidentally result in a depreciation of the value of his pledge, he may have a right of action for a direct injury to the stock not common to all stockholders as such.

Appeal by the plaintiff, Foster Milliken, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 21st day of July, 1913, as resettled by an order entered in said clerk’s office on the 24th day of July, 1913, sustaining a demurrer to the complaint.

Martin Conboy, for the appellant.

Charles W. Pierson, for the respondent.

Plaintiff is or was the owner of three-fifths of the stock of Milliken Brothers, Incorporated. That concern was put into bankruptcy and receivers appointed. A committee of creditors was organized representing the defendant banks and a plan for the readjustment of the affairs of the company proposed

p. 726

which involved the appointment of a voting trust. Ultimately plaintiff and one Manning executed demand notes for the indebtedness of said corporation and as collateral security therefor deposited with McG-arrah & Thorne, representing the banks, all their stock in said company. This stock was deposited ■under the voting trust agreement, the bankruptcy proceedings dismissed and the control and assets of the company returned to it. Under this arrangement the control and management of the company remained with the defendant banks. The complaint sets forth a long list of misdeeds and carelessness in the management of the company, as a result of which, as it is alleged, the business of the company has been ruined and its stock rendered worthless.

The plaintiff concedes that, considered merely as a stockholder, he cannot sue for the injury done to the corporation, but asserts, that as pledgor of the stock he has a cause of action for the injury done to the value of his pledged stock, in consequence of the injury done to the corporation, whereby not only his, but all of the stock, was rendered valueless.

He relies upon Ritchie v. McMullen ( 79 Fed. Rep. 522 ). That was a case in equity in which it was sought to subject Eitchie’s interest in pledged stock to the satisfaction of the judgment against him, and he undertook to offset the damage alleged to have been done to him, as owner of the stock, by the pledgees.

The gravamen of Eitchie’s claim was that the pledgees had entered into a conspiracy aimed directly at the particular stock owned by him, the injury to the corporation being merely an incident. The court said, among other things: “It is true that the obligations of the pledgee of stock to the pledgor would not be violated by the pledgee if the stock held in pledge suffered a loss in value through negligence of the pledgee in acting as director of the company or through ill-advised or negligent voting of other stock owned by him. The fact that the pledgee of stock owns other stock in the same company, or is a director or officer therein, does not impose any greater duty upon him in respect to the stock pledged than if he had no relation to the company at all.

“ But if such pledgee use his position as director and his vote

p. 727

as stockholder intentionally to depreciate the stock of his pledgor held in pledge with the dishonest purpose of acquiring ownership of the stock at forced sale, this is-a direct injury done by him to his pledgor, and he cannot avoid direct liability to his pledgor for it by pleading that the means by which he accomplished this wrong and violated his duty as pledgee, involved an injury to the corporation, for which it may also recover damages.”

The distinction is clear. For a direct injury to the stock of the pledgor, not common to all stockholders as such, the pledgor may have his action, notwithstanding he is also a stockholder.

For an injury to the corporation, common to all stockholders, the pledgor has no individual right of action although the injury to the corporation may incidentally result in a depreciation of the value of his pledge.

-The order appealed from is, therefore, affirmed, with ten dollars costs and disbursements, with leave to plaintiff to amend within twenty days upon payment of all costs.

Ingraham, P. J., Clarke and Dowling, JJ., concurred.

Order affirmed, with ten dollars costs • and disbursements, with leave to amend on payment of costs.