Stanton v. Wilson — 2 Hill & Den. 153

Majority

p. 153

Stanton, President of the Albany Exchange Bank, vs. Wilson.

Headnote

An action for the recovery of a stock subscription to an association under the general banking law, may be maintained in the name of one who is president when the suit is commenced; and this, though the subscription be made before the as-1 • sociation goes into operation.

Assumpsit, to recover the amount of stock subscribed by the defendant to the original articles of association of the Albany Exchange Bank, organized under the general banking law. The declaration set out the articles at length, which xvere dated October 18th, 1838. The declaration further alleged, that the defendant subscribed for 50 shares, at $100 each. The articles, among other things, declared that the association should commence on the 1st of January, 1839, and that the subscribers, the defendant and others, had associated according to the statute. At the foot of the articles the subscribers engaged, in xvriting, to pay to the directors, or such person or persons as they should

p. 154

appoint, the sums which they might from time to time he required to pay on their respective subscriptions. The declaration contained the other averments necessary to fix the liability of the defendant. Issue being joined, the cause was tried at the Albany circuit in December, 1840, before Cushman, C. Judge. On the trial, the allegations in the declaration were proved ; and it also appeared that the association went into operation, and that the plaintiff was president when the action was brought. Several exceptions were taken at the trial by the defendant’s counsel to the admission and rejection of evidence.

L. H. Palmer, for the defendant,

now moved for a new trial upon a bill of exceptions, and in arrest of judgment. The main point upon which he relied, and the only one which the court deemed entitled to much consideration, was that the action could not be maintained in the name of the president of the bank.

S. Stevens, contra.

By the Court,

All the objections, either in arrest or on the bill of exceptions, are clearly without foundation, except that which denies that the action can be brought in the name of the president; and this, we think, cannot be sustained. It is true that the company did not come into existence as a corporation till several months after the defendant’s subscription purports to have been made, and the power of the president to sue under the twenty-first section did not arise, till that time. (Vid. Sess. Laws of 1838, § 15, 16, 21, pp. 249, 250.) The contract, though dated before, must be considered as taking effect only from the first of January; and though the money was in terms payable to the directors, or such person as they should appoint, this was no more than a designation of the agents to receive sums really due to the corporation. The articles declaring the association to be under

p. 155

the statute, such an intent is plain. In legal effect, then, the contract of the defendant was made on the first of January, and was then to pay the corporation the amount subscribed, in such instalments as the subscription provided for. . This amount then became a debt due to the corporation; and so within the words of the twenty-first section, which gives an action in the president’s name.

The motions in arrest and for a new trial are denied.

Ordered accordingly.

p. 157

CASES. ARGUED AND DETERMINED m THE COURT FOR THE CORRECTION OF ERRORS OF THE STATE OF NE W-YORK, IN OCTOBER AND DECEMBER, 1841.