Mills v. McNamee — 233 N.Y. 517

Majority

p. 517

Borden H. Mills, as Trustee in Bankruptcy of the Playthings Corporation, Appellant, v. Frank A. McNamee, Respondent.

Headnote

Contract —■ stock subscription — initial payment of less than ten per cent of price of stock — when balance thereof cannot be recovered.

Mills v. McNamee, 194 App. Div. 932 , affirmed.

(Argued January 30, 1922;

decided February 28, 1922.)

Appeal from a judgment, entered January 20, 1921, upon an order of the Appellate Division of the Supreme Court in the third judicial department, which affirmed

p. 518

an order of Special Term denying a motion to overrule a demurrer to the complaint. The action was to recover the unpaid balance on a subscription for capital stock. The price of the stock was $5,425. At the time of subscription defendant paid $500 on account thereof. He refused to pay the balance upon the ground that the amount paid by him upon the purchase price did not amount to ten per cent as required by section 53 of the Stock Corporation Law.

Borden H. Mills, Charles H. Mills and John F. O’Brien for appellant.

Julius Illch for respondent.

Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Hogan, Cardozo, Pound, McLaughlin, Crane and Andrews, JJ.