Birmingham National Bank v. Keck

New York City Court

Birmingham National Bank v. Keck

55 How. Pr. 222

DecidedMay 15, 1878

StatusPublished

This text of 55 How. Pr. 222 (Birmingham National Bank v. Keck) is published on Counsel Stack Legal Research, covering New York City Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Birmingham National Bank v. Keck, 55 How. Pr. 222 (N.Y. Super. Ct. 1878).

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Opinion

McCue, J.

I think the demurrer well taken. The plaintiff does not allege a compliance with' the statutes- of this state, which give a right of action against the stockholders of manufacturing corporations under certain conditions. One of the conditions is, that an execution against the company shall have been returned unsatisfied in whole or in part. The indebtedness of the American Shovel Company to the plaintiff matured October 16, 1876. On the 19th day of August, 1876, the company, on the petition of plaintiffs and other [230]*230creditors, was thrown into bankruptcy, and, on the 13th day of January, 1877, was duly adjudicated a bankrupt, and thereupon the plaintiffs made proof of their claim against the, company. Ho other or further proceedings have been taken by plaintiffs to collect their claim. It is insisted by the plaintiffs that, inasmuch as the principal debtor became a bankrupt, they are relieved from the obligation to prosecute them claim any further, and that, by the adjudication in bankruptcy, they are now at liberty to sue the defendant, who is a stockholder in the company. The position is not tenable. The case of Ansonia Brass Company agt. New Lamp Chimney Company (53 N. Y., 123) is a direct authority upon this point. It is there held that as, by section 357 of the bankrupt act, a discharge from its debts is prohibited to a bankrupt corporation, a debt against it is not discharged, though proven, and the provision of section 21, prohibiting a creditor who has proved his debt from maintaining a suit therefor, does not apply as against a creditor of such corporation. It follows, therefore, that the mere proving of their claim against the American Shovel.Company by the plaintiffs did not restrain them from further proceedings to enforce their claim by suit; and that they are not released from - a compliance with the statute, which requires the issue and return of an execution unsatisfied, either in whole or in part..

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McCue, J.

I think the demurrer well taken. The plaintiff does not allege a compliance with' the statutes- of this state, which give a right of action against the stockholders of manufacturing corporations under certain conditions. One of the conditions is, that an execution against the company shall have been returned unsatisfied in whole or in part. The indebtedness of the American Shovel Company to the plaintiff matured October 16, 1876. On the 19th day of August, 1876, the company, on the petition of plaintiffs and other [230]*230creditors, was thrown into bankruptcy, and, on the 13th day of January, 1877, was duly adjudicated a bankrupt, and thereupon the plaintiffs made proof of their claim against the, company. Ho other or further proceedings have been taken by plaintiffs to collect their claim. It is insisted by the plaintiffs that, inasmuch as the principal debtor became a bankrupt, they are relieved from the obligation to prosecute them claim any further, and that, by the adjudication in bankruptcy, they are now at liberty to sue the defendant, who is a stockholder in the company. The position is not tenable. The case of Ansonia Brass Company agt. New Lamp Chimney Company (53 N. Y., 123) is a direct authority upon this point. It is there held that as, by section 357 of the bankrupt act, a discharge from its debts is prohibited to a bankrupt corporation, a debt against it is not discharged, though proven, and the provision of section 21, prohibiting a creditor who has proved his debt from maintaining a suit therefor, does not apply as against a creditor of such corporation. It follows, therefore, that the mere proving of their claim against the American Shovel.Company by the plaintiffs did not restrain them from further proceedings to enforce their claim by suit; and that they are not released from - a compliance with the statute, which requires the issue and return of an execution unsatisfied, either in whole or in part..

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Bluebook (online)

55 How. Pr. 222, Counsel Stack Legal Research, https://law.counselstack.com/opinion/birmingham-national-bank-v-keck-nycityct-1878.

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