Hetzel v. Tannehill Silver Mining Co.

New York Court of Common Pleas

Hetzel v. Tannehill Silver Mining Co.

4 Abb. N. Cas. 40

CourtNew York Court of Common Pleas

DecidedSeptember 15, 1877

StatusPublished

Cited by2 cases

This text of 4 Abb. N. Cas. 40 (Hetzel v. Tannehill Silver Mining Co.) is published on Counsel Stack Legal Research, covering New York Court of Common Pleas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hetzel v. Tannehill Silver Mining Co., 4 Abb. N. Cas. 40 (N.Y. Super. Ct. 1877).

Pincite

Opinion

J. F. Daly, J.

The affidavits show that the cor[42]*42poration was dissolved before this action was commenced ; whether it were dissolved or not I cannot say unless the record is produced. The mere appointment of the receiver would not work a dissolution (Kincaid v. Dwinelle, 59 N. Y. 548). As the plaintiff does not deny the fact of dissolution sworn to by the late president of the corporation, Mr. Colton, I assume the fact- to be that it was dissolved before the summons and complaint herein were served on Mr. Colton. Such service was irregular. A dissolved corporation has no president or other officer on whom a summons can be served to bring the corporation into court for the purpose of enforcing judgment against it.

But this works no hardship to a creditor who wishes to enforce the liability of the stockholders and as a preliminary thereto desires to obtain judgment against the corporation. If it be impossible to perform the condition required by statute and obtain such judgment, he may doubtless maintain his action against the stockholders without it (Kincaid v. Dwinelle, 59 N. Y. 548, 551; Shellington v. Howland, 53 N. Y. 371, and cases cited in the opinion).

The creditor has, besides, the remedy through the receiver, who may maintain the action against the stockholders for the benefit of the creditors and therefore for the benefit of the corporation (Calkins v. Atkinson, 2 Lans. 12).

Motion granted. No costs.

Free access — add to your briefcase to read the full text and ask questions with AI

J. F. Daly, J.

The affidavits show that the cor[42]*42poration was dissolved before this action was commenced ; whether it were dissolved or not I cannot say unless the record is produced. The mere appointment of the receiver would not work a dissolution (Kincaid v. Dwinelle, 59 N. Y. 548). As the plaintiff does not deny the fact of dissolution sworn to by the late president of the corporation, Mr. Colton, I assume the fact- to be that it was dissolved before the summons and complaint herein were served on Mr. Colton. Such service was irregular. A dissolved corporation has no president or other officer on whom a summons can be served to bring the corporation into court for the purpose of enforcing judgment against it.

But this works no hardship to a creditor who wishes to enforce the liability of the stockholders and as a preliminary thereto desires to obtain judgment against the corporation. If it be impossible to perform the condition required by statute and obtain such judgment, he may doubtless maintain his action against the stockholders without it (Kincaid v. Dwinelle, 59 N. Y. 548, 551; Shellington v. Howland, 53 N. Y. 371, and cases cited in the opinion).

The creditor has, besides, the remedy through the receiver, who may maintain the action against the stockholders for the benefit of the creditors and therefore for the benefit of the corporation (Calkins v. Atkinson, 2 Lans. 12).

Motion granted. No costs.

Cite This Page — Counsel Stack

Bluebook (online)

4 Abb. N. Cas. 40, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hetzel-v-tannehill-silver-mining-co-nyctcompl-1877.

Opinion

J. F. Daly, J.

Related

Cite This Page — Counsel Stack