Jaycox, J.:
This action is instituted by the Superintendent of Banks of the State of Hew York to enforce the statutory liability of the defendants as stockholders of the Union Bank of Brooklyn, an insolvent banking corporation. Some of the defendants have demurred to the complaint. They have interposed a number of separate demurrers. The grounds stated for such demurrers [393]*393are: First. Because the plaintiff has no legal capacity to sue, for the reason that (a) suit must be in the name of the bank; (b) in general, the statutes attempting to give the Superintendent of Banks power to bring suits of this character are unconstitutional. Second. Because the Union Bank is not made a party. Third. Because the complaint does not state facts sufficient to constitute a cause of action.
Subdivision (a) of the first ground of demurrer above stated is based upon the amendment to section 19 of the Banking Law (Consol. Laws, chap. 2; Laws of 1909, chap. 10) by chapter 452 of the Laws of 1910, which, among other things, added a provision to said section that: “For the purpose of executing and performing any of the powers and duties hereby conferred upon him, the superintendent may, in the name of the delinquent corporation or individual banker, prosecute and defend any and all suits and other legal proceedings.
The subdivision of this objection designated as (b), I think, is without merit, and has already been passed upon in Van Tuyl v. Robin (supra).
The objection that there is a defect of parties defendant, and that the Union Bank should have been made a party defendant was decided adversely to the demurrants in Van Tuyl v. Scharmann (208 N. Y. 53, 63), where it is held that the Lafayette Trust Company was not a necessary party to that action, and the court says: “We conclude that while the company may be a proper party defendant, it is not a necessary party.”
Under the objection that the complaint does not state facts sufficient to constitute a cause of action, various grounds of objection are raised. First, it is urged, under Cheney v. Scharmann (145 App. Div. 456), that the action must be for an accounting, and not an action at law. I recognize the force of the reasoning in that case, and am convinced that in the situation there presented an action in equity was the proper form of action. I am not convinced, and do not think the court intended to hold, that no situation could arise in which an action at law could not be prosecuted to enforce the liability of the stockholders under the statute. Whether an action at law-will lie herein, I think, depends entirely upon the facts pleaded. If the pleader, as in this case, gives the amount of the assets and the amount of the liabilities, and there is such an apparent disparity between them that each stockholder will be required to [395]*395pay the full amount of his statutory liability, I can see no good purpose to be served by bringing an action in equity for an accounting.
Some of the arguments presented upon the demurrers are to the effect that this disparity is more apparent than real. That may be true, but I am not called upon to determine that question upon this motion. It may be that the plaintiff will be unable to prove his cause of action as alleged, but I am not concerned with that question. I am only determining whether the facts stated constitute a cause of action. In so far as the statement of the facts necessary to constitute an action for the statutory liability, I am of the opinion that the pleader has alleged facts sufficient. I am also of the opinion that these facts are sufficient to avoid.the necessity of an accounting in equity. I have so far discussed this question upon the assumption that defendants’ contention that this is an action at law is correct. I am of the opinion that it is not. The ultimate relief sought is the payment by the defendants severally of the amounts for which they are liable under the statute. The court is, however, first required to determine who the stockholders are, the number of shares they severally own —- in effect, that the amount of the deficiency may be ascertained and the defendants be adjudged to pay such deficiency equally and ratably.
Even if the prayer for relief is erroneous, the complaint is not rendered demurrable thereby. If the facts alleged in the complaint justify a recovery, either in law or equity, it cannot be held that the demurrer is well taken, although the pleading may be open to correction by motion or otherwise. (Abbey v. Wheeler, 170 N. Y. 122, 127.)
Another ground of objection is that the complaint does not show a compliance with section 59 of the Stock Corporation Law. (Consol. Laws, chap. 59; Laws of 1909, chap. 61). As to the defendants’ claim that under the decision in Hirshfeld v. Bopp (145 N. Y. 84) it must be shown that the debts constituting the bank’s liabilities were payable within two years from the time they were contracted and that the stockholders’ liability is limited to these debts, I think this provision of the statute, if it be applicable to this situation, contravenes article 8, section 7, of the Constitution, which provides: “The stock[396]
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Jaycox, J.:
This action is instituted by the Superintendent of Banks of the State of Hew York to enforce the statutory liability of the defendants as stockholders of the Union Bank of Brooklyn, an insolvent banking corporation. Some of the defendants have demurred to the complaint. They have interposed a number of separate demurrers. The grounds stated for such demurrers [393]*393are: First. Because the plaintiff has no legal capacity to sue, for the reason that (a) suit must be in the name of the bank; (b) in general, the statutes attempting to give the Superintendent of Banks power to bring suits of this character are unconstitutional. Second. Because the Union Bank is not made a party. Third. Because the complaint does not state facts sufficient to constitute a cause of action.
Subdivision (a) of the first ground of demurrer above stated is based upon the amendment to section 19 of the Banking Law (Consol. Laws, chap. 2; Laws of 1909, chap. 10) by chapter 452 of the Laws of 1910, which, among other things, added a provision to said section that: “For the purpose of executing and performing any of the powers and duties hereby conferred upon him, the superintendent may, in the name of the delinquent corporation or individual banker, prosecute and defend any and all suits and other legal proceedings.
The subdivision of this objection designated as (b), I think, is without merit, and has already been passed upon in Van Tuyl v. Robin (supra).
The objection that there is a defect of parties defendant, and that the Union Bank should have been made a party defendant was decided adversely to the demurrants in Van Tuyl v. Scharmann (208 N. Y. 53, 63), where it is held that the Lafayette Trust Company was not a necessary party to that action, and the court says: “We conclude that while the company may be a proper party defendant, it is not a necessary party.”
Under the objection that the complaint does not state facts sufficient to constitute a cause of action, various grounds of objection are raised. First, it is urged, under Cheney v. Scharmann (145 App. Div. 456), that the action must be for an accounting, and not an action at law. I recognize the force of the reasoning in that case, and am convinced that in the situation there presented an action in equity was the proper form of action. I am not convinced, and do not think the court intended to hold, that no situation could arise in which an action at law could not be prosecuted to enforce the liability of the stockholders under the statute. Whether an action at law-will lie herein, I think, depends entirely upon the facts pleaded. If the pleader, as in this case, gives the amount of the assets and the amount of the liabilities, and there is such an apparent disparity between them that each stockholder will be required to [395]*395pay the full amount of his statutory liability, I can see no good purpose to be served by bringing an action in equity for an accounting.
Some of the arguments presented upon the demurrers are to the effect that this disparity is more apparent than real. That may be true, but I am not called upon to determine that question upon this motion. It may be that the plaintiff will be unable to prove his cause of action as alleged, but I am not concerned with that question. I am only determining whether the facts stated constitute a cause of action. In so far as the statement of the facts necessary to constitute an action for the statutory liability, I am of the opinion that the pleader has alleged facts sufficient. I am also of the opinion that these facts are sufficient to avoid.the necessity of an accounting in equity. I have so far discussed this question upon the assumption that defendants’ contention that this is an action at law is correct. I am of the opinion that it is not. The ultimate relief sought is the payment by the defendants severally of the amounts for which they are liable under the statute. The court is, however, first required to determine who the stockholders are, the number of shares they severally own —- in effect, that the amount of the deficiency may be ascertained and the defendants be adjudged to pay such deficiency equally and ratably.
Even if the prayer for relief is erroneous, the complaint is not rendered demurrable thereby. If the facts alleged in the complaint justify a recovery, either in law or equity, it cannot be held that the demurrer is well taken, although the pleading may be open to correction by motion or otherwise. (Abbey v. Wheeler, 170 N. Y. 122, 127.)
Another ground of objection is that the complaint does not show a compliance with section 59 of the Stock Corporation Law. (Consol. Laws, chap. 59; Laws of 1909, chap. 61). As to the defendants’ claim that under the decision in Hirshfeld v. Bopp (145 N. Y. 84) it must be shown that the debts constituting the bank’s liabilities were payable within two years from the time they were contracted and that the stockholders’ liability is limited to these debts, I think this provision of the statute, if it be applicable to this situation, contravenes article 8, section 7, of the Constitution, which provides: “The stock[396]*396holders of every corporation and joint-stock association for banking purposes, shall be individually responsible to the amount of their respective share or shares of stock in any such corporation or association, for all its debts and liabilities of every kind.”
The claim that judgment must be recovered and execution returned unsatisfied upon these debts is conclusively answered by the reasoning of Mr. Justice Woodward in Cheney v. Scharmann (145 App. Div. 456).
But one more objection is made, and that is that no leave of court for plaintiff to sue has been obtained. While plaintiff’s position is in some aspects analogous to that of a receiver, as was pointed out in Matter of Union Bank (204 N. Y. 313), in many other aspects it is essentially different. His powers are statutory, and there is nothing in the statute to indicate that he is required to make application to the court to be permitted to perform the duties which the statute imposes upon him.
Motion for judgment is granted, with ten dollars costs in each instance, with leave to each of said defendants to plead over within twenty days upon payment of such costs.
Now Banking. Law (Consol. Laws, chap. 2; Laws of 1914, chap. 869), §71.—[Rep.