Warsen v. Granger

246 A.D. 778

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 1935
• Status: Published

Opinion

Order granting plaintiff’s motion for summary judgment and the judgment entered thereon reversed upon the law, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. The action is brought under section 71 of the Stock Corporation Law, which provides that stockholders of a corporation shall be personally liable to laborers, servants and employees, other than contractors, for services performed for such corporation. The statute also provides that an action therefor shall be commenced within thirty days after the return of an execution unsatisfied against the corporation upon a judgment recovered against it for such services. The answering affidavits present triable issues. Whether plaintiff is a laborer, servant or employee wdthin the meaning of the statute (Farnum v. Harrison, 167 App. Div. 704; affd., 218 N. Y. 672), and whether the action was commenced "within the thirty-day limitation, cannot be determined on the conflicting affidavits. Young, Hagarty, Davis and Johnston, JJ., concur; Lazansky, P. J., not voting.