Majority
p. 296Alice Richards, Pl’ff and App’lt, v. John H. Beach, Def’t and Resp’t.[1] (New York Common Pleas, General Term, Filed February 4, 1889.) Tlie city court sustained the demurrer and awarded judgment in favor of the defendant for the costs, rendering the following opinion:
Headnote
1. Corporation — When creditors may bring action against stockholder—Laws 1875, chap. 611—No necessity for alleging a judgment AND RETURN OF EXECUTION.An employee of a domestic corporation may have an action for services to the corporation, against a stockholder of the corporation to enforce the statutory liability imposed by section 37 of chapter 611 of Laws of 1875, without alleging the obtaining of a judgment and the return of an execution against the company unsatisfied.
3. Same—Appeal—To common pleas — Decision of court of appeals
AFTER APPEAL TO COMMON PLEAS—LEAVE TO ANSWER OVER.
Where a decision is made by the court of appeals in another case involving the same questions as in the case at bar after the appeal in the case at bar had been taken to the common pleas, the respondent will have leave to answer over on payment of the costs of the appeal to the common pleas only. i
3. Same—Injunction from another court restraining parties from proceeding with action—Common pleas not bound by.
It seems the court of common pleas is not bound by an injunction from another court restraining the parties from' proceeding with an action, although the parties are.
Appeal from a judgment in favor of defendant in the city court on a demurrer to the complaint.
The complaint alleged that The American Opera Company (limited) was a domestic corporation, incorporated as an opera company under the act of 1875, having its principal place of business in the city of New York; that the defendant, John H. Beach, was a stockholder owning twenty-five shares of its stock of the par value of $100 per share, which was not fully paid for; that the plaintiff is a judgment creditor of the said corporation, which is indebted to her in the sum of $145.04 for services rendered by plaintiff to said'corporation as a ballet dancer in its business as an opera company; that said services were rendered as a laborer and servant by a female employee thereof whereby ■* * * any stockholder is personally liable therefor under the general act of 1848, and also under section 37 of chapter 611 of the Laws of 1875, to an amount equal to the par value of his stock until the full capital is paid in.
To this complaint the defendant demurred on the ground “that the same does not state facts sufficient to constitute a cause of action.”
p. 297Me Ad am, Ch. J.—“The facts of this case are almost similar to those in Bicharás v. Coe. except that the plaintiff in the present action declares upon a judgment against the corporation, but the complaint fails to allege that am execution has been duly issued thereon and returned unsatisfied. “ This omission is fatal to the plaintiff’s right of action for the reasons assigned in the Coe Case. “There is no provision in the act of 1875, chapter 611,. making a stockholder liable for debts due to laborers, servants or apprentices, for services performed to the corporation, and the allegations of the complaint attempting to bring the plaintiff’s claim within the category merit no comment, and may be regarded as surplusage. The provisions of the manufacturing act of 1848 (chap. 40, § 18), which the pleader evidently had in mind, because they refer to these subjects, do not in any manner affect corporations created under the act of 1875, but even under these-provisions of the manufacturing act of 1848, the stockholder cannot be sued until the legal remedies of the creditor have been exhausted. “The demurrer to the complaint must, therefore, be sustained, with costs.” The plaintiff then appealed to the general term of the city court, which affirmed the judgment of the trial court, from, which the plaintiff appealed to this court. This appeal presents the single question whether a credit- or’s action against a stockholder, to enforce the statutory liability imposed by section 37 of chapter 611 of the Laws of 1875, can be brought without alleging the return of an execution against the company unsatisfied.
' William W. Badger, for app’lt; George W. Cotterell, for resp’t.
—This court is not restrained by the injunction in the case of Cochran v. The American Opera Company, even if the parties to the appeal are. If either of them has violated the injunction by bringing on the argument of the appeal, he is responsible.
Since the first argument of this case the court of appeals have decided the matter in controversy in Walton v. Coe ( 110 N. Y., 109 ; 16 N. Y. State Rep., 866) adversely to the respondent, and the judgment must, therefore, be reversed.
But as this decision is made after the appeal had been taken from the city court, we think the respondent should; have liberty to answer over, on payment of the costs .of the appeal to this court only.