Manufacturer's Commercial Co. v. Heckscher — 203 N.Y. 560

Majority

p. 560

Manufacturers’ Commercial Company, Suing in Its Own Behalf and in Behalf of Other Creditors of Newfoundland Syndicate, Appellant, v. August Heckscher et al., as Copartners, Constituting the Firm of J. M. Ceballos & Company et al., Respondents.

Headnote

Manufacturers' Commercial Co. v. Heckscher, 144 App. Div. 601 , affirmed.

(Argued October 5, 1911;

decided October 24, 1911.)

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial depart - ment, entered July 14, 1911, which- reversed an interlocutory judgment of - Special Term overruling demurrers to the complaint and sustained such demurrers in a creditor’s action against stockholders of the Newfoundland Syndicate who, it was alleged, had procured their stock for less than par.

The following questions were certified:

“First. Does the complaint'herein state facts sufficient to constitute a cause of action in favor of the plaintiff against any of the defendants?

“Second. Does it appear upon the. face of the complaint herein that the plaintiff has not legal capacity to sue, in that suit can be brought only in the right of the trustee in bankruptcy of Newfoundland Syndicate, for the benefit of said syndicate’s creditors and for the benefit of the estate in bankruptcy? ”

Elbridge L. Adams and Nelson S. Spencer for appellant.

Francis D. Pollak and Justus P. Sheffeld for respondents.

Order affirmed, with costs, on opinion of Dowling, J., below. First question certified answered in the negative; second question not answered.

Concur: Cullen, Oh. J., Haight, Vann, Werner, Willard Bartlett, Hiscock and Chase, JJ.