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Van Tuyl v. Kress

172 A.D. 563 Court First Department, Decision date 1916-05-05 English

Delivered by Page, J.:

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p. 563
George C. Van Tuyl, Jr., as Superintendent of Banks of the State of New York, Respondent, v. Samuel H. Kress and George C. Luebbers, Appellants, Impleaded with Charles M. Schwab and Others, Defendants.
First Department,
May 5, 1916.

Headnote

Banks — enforcement of individual liability of stockholders — defendants cannot be joined in action at law—equity proper remedy — multiplicity of suits.
Where the State Superintendent of Banks, acting under the authority of section 19 of the Banking Law, seeks to enforce the individual liability of stockholders of a bank imposed by section 196 of the statute, the facts entitling him to maintain an action against each defendant are different.
p. 564
Thus, it must be shown that a demand has been made upon each stockholder and that each has refused to pay the assessment levied; it must be shown that each defendant is a holder of shares which are separate and distinct.
The liability of each shareholder is several, not joint, and arises out of different facts, and, hence, they cannot be joined as defendants in an action at law.
It follows, therefore, that in order to avoid a multiplicity of suits, relief against all the stockholders may be had on the equitable side of the court.
Smith, J., dissented.
Appeal by the defendants, Samuel H. Kress and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 7th day of February, 1916, denying their motion to strike the action from the Special Term calendar.
Donald C. Strachan, for the appellants.
Joseph A. Kellogg, for the respondent.

Section 196 of the Banking Law (Consol. Laws, chap. 2; Laws of 1909, chap. 10),[1] **§which created the liability sought to be enforced in this action, provided that the stockholders of a trust company should be “ individually responsible, equally and ratably, for the then existing debts of the corporation ” in an amount not exceeding the par value of the stock held by each. Section 19 of the same law (as amd. by Laws of 1910, chap. 452) gave the Superintendent of Banks the power, under the conditions therein set forth, to liquidate the affairs of the corporation, and the statute provided that he “ shall collect all debts due and claims belonging to it, and upon the order of the Supreme Court may sell pr compound all bad or doubtful debts, and oh like order may sell all the real and personal property of such corporation or individual banker on such terms as the court shall direct; and may, if necessary to pay the debts of such corporation, enforce the individual liability of the stockholders. ”[2] The

* Now Banking Law (Consol. Laws, chap. 2; Laws of 1914, chap. 369), § 206.—[Rep.

† † Now Banking Law (Consol. Laws, chap. 2; Laws of 1914, chap. 369), § 67 et seq.; Id. §§ 69, 80.— [Rep.

p. 565
facts entitling the plaintiff to maintain the action against each defendant are different. It must he shown that a demand has been made upon each and each has refused to pay the assessment levied by the Superintendent and it is in each case a separate demand and refusal. It must be shown that each defendant is a holder of shares in the corporation, which are separate and distinct shares in each case. The liability of each shareholder is several, not joint, and arises out of different facts from that of his fellow-shareholder. It is clear, therefore, that the causes of action against the various stockholders could not, in an action at law, be joined in one action. (O'Brien v. Fitzgerald, 143 N. Y. 377 .) But the stockholders are responsible “ equally and ratably ” to the extent of the par value of their stockholdings. In order to apportion the liability among the stockholders equally and ratably, a marshalling of the assets of the corporation is necessary, after which the amount due from each stockholder may be tentatively determined. But in the event of any stockholder being shown to be insolvent, or if for any reason the judgment against him be uncollectible, the deficiency thus created will have to be apportioned among the solvent stockholders until the liability of all has been exhausted to its full extent. (Marshall v. Sherman, 148 N. Y. 9 , 22; Van Tuyl v. Schwab, 165 App. Div. 412 .) To accomplish this result at law would perhaps involve repeated actions against the. same stockholder before his liability was completely exhausted, to say nothing of separate actions each involving a long accounting against each stockholder. To avoid a multiplicity of suits and accomplish a perfect relief in a single action, it is, therefore, necessary to resort to the equitable side of the court. For this reason I am of opinion that the motion to strike the case from the Special Term calendar was properly denied.

The order should be affirmed, with ten dollars costs and disbursements.

Clarke, P. J., McLaughlin and Laughlin, JJ., concurred; Smith, J., dissented.

Order affirmed, with ten dollars costs and disbursements.

Cases cited

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