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Gause v. Boldt

100 N.Y.S. 1117 Court N.Y. App. Div. Decision date 1906-11-05 English

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p. 1117
GAUSE, Appellant, v. BOLDT et al., Respondents.
(Supreme Court, Appellate Division, First Department.
November 5, 1906.)

Headnote

Appeal from Special Term, New York County. Action b~ Harry T. Gause, on his own behalf and that of all other creditors of the Commonwqalth Trust Company, against George C. Boldt and others. From a judgment dismissing the complaint on demurrer, p]~aintiff appeals. Modified and affirmed. Howard Taylor, for appellant. Chas. B. Souther, for respondents Boldt et al. William H. Fain, for respondent Mynderse. York Allen, for respondent Hagemeyer. William M. Bennett, for respondents Hallowell et al. Francis S. Hutchins, for respondent Commonwealth Trust Co.

The clear and exhaustive opinion of Mr. Justice Leventritt, delivered at Special Term on the sustaining of defendants' demurrers to plaintiff's complaint, expresses our views upon the legal questions involved, and the

p. 1118
judgment Should be affirmed on his opinion. 49 Misc. Rep. 340 , 99 N. Y. Supp. 442 . We only desire to add that when plaintiff, with proper diligence, shall finally succeed in obtaining his judgment against the trust company, and have issued execution thereon and obtained its return unsatisfied, and shall bring his action against the stockholders of the trust company to recover for the unpaid balance, and such stockholders shall plead as a defense that the action was not brought within two years from the time they ceased to be stockholders, as provided by section 55 of the stock corporation law (Laws 1892, p. 1841, c. 688), a very grave question, in our judgment, will be presented as to the constitutionality of that provision of that section. That question, in our view, is not now before us for decision. With respect to costs, we think but one bill of costs should have been allowed by the judgment, such bill to be divided amongst all the defendants whose demurrers were sustained by the judgment. The judgment is modified by striking therefrom all bills of costs except one, that one to be divided amongst all defendants whose demurrers were sustained therein, and, as so modified, affirmed, without costs in this court.

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