Stolz v. Ginsburg — 217 A.D. 701

Majority

p. 701

Third Department,

May, 1926.

Benjamin Stolz, as Trustee in Bankruptcy of Glens Falls Jobbing House, Inc., a Bankrupt, Appellant, v. William I. Ginsburg and Others, Respondents.

Headnote

Corporations — action by trustee in bankruptcy — action not maintainable under Stock Corporation Law, § 59, nor Bankruptcy Act, § 47 — complaint not sufficient under General Corporation Law, § 91-a.

Appeal from a judgment of the Supreme Court, entered in the Warren county clerk’s office on December 18, 1925, dismissing the complaint, and also from an order entered on the same day directing the entry of the said judgment on the pleadings.

This action cannot be maintained by the plaintiff under section 59 of the Stock Corporation Law (See Billings v. Trask, 30 Hun, 314 ); nor under section 47 of the Bankruptcy Act, as amended in 1910,^[1] because that section, as amended, relates only to the property of the corporation. Plaintiff claims the complaint may be sustained under section 91-a of the General Corporation Law.^[2] There is not in the complaint, however, any allegation of negligence nor, stripped of legal conclusions, any allegation showing injury to or losses of the funds or property of the corporation, which allegations are necessary under that section. Judgment and order unanimously affirmed, with costs.

* See 30 U. S. Stat. at Large, 557, § 47, as amd. by 36 id. 840, § 8.—[Rep.

† † Added by Laws of 1913, chap. 633.— [Rep.