Clapp v. Wright

New York Supreme Court

Clapp v. Wright

28 N.Y. Sup. Ct. 240

DecidedMay 15, 1880

StatusPublished

This text of 28 N.Y. Sup. Ct. 240 (Clapp v. Wright) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Clapp v. Wright, 28 N.Y. Sup. Ct. 240 (N.Y. Super. Ct. 1880).

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Opinion

Barnard,* P. J.:

The counter-claim set forth in the answer was properly stricken out. The plaintiff seeks to recover for services rendered by him to the defendant. He sets up as a counter-claim, that the plaintiff was a trustee of a manufacturing corporation, and had, by reason of a failure to file the yearly report of the company, according to the provisions of the General Manufacturing Act of 1848 (ch. 40), made himself liable for the payment of its debts, and that the defendant held debts of the company, at the time of the default, which he would prove against plaintiff’s claim.

The counter-claim is not based upon a contract, existing at the time of the commencement of the action, as required by section 501 of the Code of Civil Procedure. The claim against plaintiff, as trustee, is not a claim upon contract. The plaintiff is neither a principal debtor nor a surety for the debts of the corporation. (Miller v. White, 50 [241]*241N. Y., 13.) The liability against the plaintiff is a penalty imposed upon him for neglect of duty. (Merchants’ Bank of New Haven v. Bliss, 35 N. Y., 412; Chambers v. Lewis, 28 Id., 454.)

The order appealed from should be affirmed, with costs and disbursements.

Pkatt, J., concurred; Gilbert, J.; not sitting.

Order striking out answer affirmed, with costs and disburse ments.

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Barnard,* P. J.:

The counter-claim set forth in the answer was properly stricken out. The plaintiff seeks to recover for services rendered by him to the defendant. He sets up as a counter-claim, that the plaintiff was a trustee of a manufacturing corporation, and had, by reason of a failure to file the yearly report of the company, according to the provisions of the General Manufacturing Act of 1848 (ch. 40), made himself liable for the payment of its debts, and that the defendant held debts of the company, at the time of the default, which he would prove against plaintiff’s claim.

The counter-claim is not based upon a contract, existing at the time of the commencement of the action, as required by section 501 of the Code of Civil Procedure. The claim against plaintiff, as trustee, is not a claim upon contract. The plaintiff is neither a principal debtor nor a surety for the debts of the corporation. (Miller v. White, 50 [241]*241N. Y., 13.) The liability against the plaintiff is a penalty imposed upon him for neglect of duty. (Merchants’ Bank of New Haven v. Bliss, 35 N. Y., 412; Chambers v. Lewis, 28 Id., 454.)

The order appealed from should be affirmed, with costs and disbursements.

Pkatt, J., concurred; Gilbert, J.; not sitting.

Order striking out answer affirmed, with costs and disburse ments.

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28 N.Y. Sup. Ct. 240, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clapp-v-wright-nysupct-1880.

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