Abel v. Munro, 205.
| Decision Date | 18 March 1940 |
| Docket Number | No. 205.,205. |
| Citation | 110 F.2d 647 |
| Parties | ABEL et al. v. MUNRO et al. |
| Court | U.S. Court of Appeals — Second Circuit |
Abraham Fishbein, of New York City, for plaintiffs-appellants.
Edwin V. Hellawell, of New York City, for defendants-appellees.
Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
The Comptroller of the Currency levied an assessment upon the plaintiffs as stockholders of the National Bank of Ridgewood. The plaintiffs brought this suit against the Comptroller and the receiver of the bank to have the assessment declared invalid and its collection enjoined, whereupon the defendants moved to dismiss the amended complaint on the ground that it failed to state a cause of action. The question before us is whether enough appears on the face of the pleading to withstand a demurrer.
The Supreme Court has assumed that fraud will render an assessment against a stockholder of a national bank invalid. Adams v. Nagle, 303 U.S. 532, 58 S.Ct. 687, 82 L.Ed. 999. In our opinion the amended complaint contains charges of fraud sufficient to prevent its dismissal at the present stage of the litigation. We hold that the allegations, though confused, state a cause of action and that the order dismissing the amended complaint must accordingly be reversed.
The claim that the assessment was fraudulent is based upon the allegations of the amended complaint (a) that on August 20, 1931, at a time when the National Bank of Ridgewood was solvent and its capital was unimpaired, but Richmond National Bank was insolvent, or its insolvency imminent, Richmond took over all the assets of Ridgewood, promised to pay the latter's deposits and other liabilities to the amount of $1,172,757.36 and Ridgewood gave its note payable to Richmond for that amount, which was to have no effect until Richmond had paid the deposits and other liabilities of Ridgewood; (b) that Richmond waived all liability of Ridgewood's stockholders, that Ridgewood's depositors and creditors also waived all recourse against its stockholders, that after the transfer of assets Richmond mingled the assets of Ridgewood with its own and did not pay the liabilities of Ridgewood and the latter had no liabilities other than the claim of Richmond; (c) that the Comptroller, knowing the above facts, fraudulently levied an assessment against the stockholders of Ridgewood, though the latter had no creditors and even the claim of Richmond against the stockholders of Ridgewood...
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Harris v. United States
...for the purposes of this motion, and the complaint itself must be construed in the light most favorable to the plaintiff, (Abel v. Munro, 110 F.2d 647 (C.A.2, 1940), and the complaint is not to be dismissed if it recites a claim upon which relief can be granted even absent the allegation of......
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Buchholtz v. Renard
...of the complaint must be taken as true and the complaint must be construed in the light most favorable to the plaintiffs. Abel v. Munro, 2 Cir., 1940, 110 F.2d 647. * * * Nor should a complaint fall before such an assault unless it appears to a certainty that plaintiffs are entitled to no r......
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Weinberg v. Sinclair Refining Co.
...the affidavits if any, but the allegations of the complaint must be construed in the light most favorable to the plaintiffs. Abel v. Munro, 2 Cir., 110 F.2d 647. On such a motion all inferences must be resolved against the movant. Hovenden v. City of Bristow, Okl., D.C., 34 F.Supp. The case......