Miller-Schlott, Inc. v. McGovern

250 A.D. 763, 293 N.Y.S. 868, 1937 N.Y. App. Div. LEXIS 8889

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 1, 1937
• Status: Published

Opinion

Action by appellant, a judgment creditor of the corporate defendant, seeking (1) to hold the individual defendant McGovern, an officer, director and sole controlling stockholder of the corporate defendant, as a trustee ex maleficio with respect to moneys of the corporate defendant alleged to have been converted by him in violation of his duties as such officer and director, to the detriment of the plaintiff, such creditor, and (2) to hold him personally liable under the provisions of the Stock Corporation Law, section 15, for illegal transfers, to himself and to one Alexander C. Cohen, of funds of the corporate defendant, which had the effect of making that defendant insolvent. The. trial court dismissed the complaint at the close of plaintiff’s proofs. Prom the judgment thereon entered, plaintiff appeals. Judgment reversed on the law and a new trial granted, with costs to appellant to abide the event. We are of opinion that the plaintiff proved a prima facie case as to each cause of action, and that the dismissal of the complaint was error. The trial court made findings of fact and conclusions of law based on pleaded defenses. The dismissal was at the close of plaintiff’s proofs. The sole question here is whether the plaintiff established a prima facie case. (First Nat. Bank of Hempstead v. Level Club, Inc., 241 App. Div. 433, 438.) For the purposes of the new trial granted, the findings of fact and conclusions of law are reversed. Lazansky, P. J., Carswell, Davis, Adel and Taylor, JJ., concur.