Schiffer v. Trustees of Columbia College

U.S. Circuit Court for the District of Southern New York

Schiffer v. Trustees of Columbia College

87 F. 166, 1898 U.S. App. LEXIS 2566

CourtU.S. Circuit Court for the District of Southern New York

DecidedMay 7, 1898

StatusPublished

This text of 87 F. 166 (Schiffer v. Trustees of Columbia College) is published on Counsel Stack Legal Research, covering U.S. Circuit Court for the District of Southern New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Schiffer v. Trustees of Columbia College, 87 F. 166, 1898 U.S. App. LEXIS 2566 (circtsdny 1898).

Pincite

Opinion

LACOMBE, Circuit Judge.

This is an action at law to enforce the individual liability of a stockholder in a corporation created under the statutes of the state of Kansas. The provisions of the constitution and the laws of that state creating such liability are set forth in full in Whitman v. Bank, 28 C. C. A. 404, 83 Fed. 288, where the court of appeals in this circuit held that the liability thus created was contractual, and could be enforced in this court against a resident of this district.

Plaintiffs demur to the eighth paragraph óf the answer, which avers in defense that defendant “is not, and never was, a stockholder in the Kansas corporation.” It is unnecessary to discuss the effect of such nonownership. The averment is not, in any logical sense, a defense to the claim set forth in the complaint. If it be essential to the plaintiffs’ recovery to show that defendant is or was such stockholder, then, failing to aver and prove that .fact, they will fail to make out any claim at all. The averment in the eighth paragraph is surplusage, and might have been stricken out on motion. To dis[167]*167cuss the merits of the controversy upon a superfluous averment would seem to be itself superfluous.'

Plaintiffs demur to the ninth paragraph of the answer, which sets np a statute of limitations of the state of Kansas touching demands against decedents’ estates. The liability of the stockholder being contractual and transitory, the limitation of time within which such liability shall be enforced against a person sued thereon is a matter to be determined by the laws of the state in which the action is brought.

The demurrer to the ninth paragraph is sustained, and plainiirfs given leave to withdraw the demurrer to the eighth paragraph within five days. If not thus withdrawn, it will be overruled.

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

LACOMBE, Circuit Judge.

This is an action at law to enforce the individual liability of a stockholder in a corporation created under the statutes of the state of Kansas. The provisions of the constitution and the laws of that state creating such liability are set forth in full in Whitman v. Bank, 28 C. C. A. 404, 83 Fed. 288, where the court of appeals in this circuit held that the liability thus created was contractual, and could be enforced in this court against a resident of this district.

Plaintiffs demur to the eighth paragraph óf the answer, which avers in defense that defendant “is not, and never was, a stockholder in the Kansas corporation.” It is unnecessary to discuss the effect of such nonownership. The averment is not, in any logical sense, a defense to the claim set forth in the complaint. If it be essential to the plaintiffs’ recovery to show that defendant is or was such stockholder, then, failing to aver and prove that .fact, they will fail to make out any claim at all. The averment in the eighth paragraph is surplusage, and might have been stricken out on motion. To dis[167]*167cuss the merits of the controversy upon a superfluous averment would seem to be itself superfluous.'

Plaintiffs demur to the ninth paragraph of the answer, which sets np a statute of limitations of the state of Kansas touching demands against decedents’ estates. The liability of the stockholder being contractual and transitory, the limitation of time within which such liability shall be enforced against a person sued thereon is a matter to be determined by the laws of the state in which the action is brought.

The demurrer to the ninth paragraph is sustained, and plainiirfs given leave to withdraw the demurrer to the eighth paragraph within five days. If not thus withdrawn, it will be overruled.

Cite This Page — Counsel Stack

Bluebook (online)

87 F. 166, 1898 U.S. App. LEXIS 2566, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schiffer-v-trustees-of-columbia-college-circtsdny-1898.

Opinion

Related

Cite This Page — Counsel Stack