Griffeth v. Green — 37 N.Y. St. Rep. 705

Majority

p. 705

Silas L. Griffeth, App’lt, v. Andrew H. Green et al., Resp’ts.

(Supreme Court, General Term, Second Department,

Filed February 9, 1891.)

Headnote

1. Manufacturing companies—Stockholders—Increased stock.

In an action to enforce the liability of stockholders of a manufacturing company for its debts on the ground of a failure to file a certificate of payment of increased stock issued by the company, where it appears that

p. 706

certificates of payment of the original stock and an increase thereof to a certain amount had been duly filed, the burden of proof is upon the . plaintiff to show that defendants’ stock was increased stock of a subsequent issue.

8. Same—Limitation—Laws 1848, chap. 40, § 24.

A suit against the company on notes given by it is not a suit for the < ollection of the debts for which the notes were given, within the meaning of the statute requiring such actions to be brought within one year.

Appeal from judgment dismissing the complaint on the merits.

A. M. & G. Card, for app’lt; Dixon, Williams & Ashley (Mornay Williams, of counsel), for resp’ts.

The action was brought by a creditor of theMillerton Iron Company, a trading corporation formed under the laws of this state which provide for the organization of mining and manufacturing companies. The object of the action is to enforce the personal liability of the stockholders for the debt of the corporation.

The ground on which the liability is sought to be enforced is-that no proper certificate of the payment in full of certain increased stock issued by the company was ever filed. It was conceded, however, that the original stock of the company and the increase thereof up to $70,000 was fully paid, and the certificate duly filed, and the trial judge so found, and he also found that no proof was given as to whether any of the stock held by the defendants was increased' stock, and be decided as a conclusion of law that the burden of proof rested upon the plaintiff to show that the stock of the defendants was increased stock of an issue subsequent to the issuance of the first $70,000 of stock.

This last conclusion is fully sustained by the case of Veeder v. Mudgett, 95 N. Y., 295 , and seems to be decisive of this ease.

We also concur with the conclusion of the trial judge that the suit against the company upon the notes was not an action for the collection of the debt such as the statute contemplates. Parrott v. Colby, 6 Hun, 55 ; S. C., 71 N. Y., 597 .

The judgment should be affirmed, with costs.

Pratt, J., concurs; Barnard, P. J., not sitting.