Frank Shepard Co. v. Zachary P. Taylor Pub. Co.
| Decision Date | 16 January 1923 |
| Citation | 234 N.Y. 465,138 N.E. 409 |
| Parties | FRANK SHEPARD CO. v. ZACHARY P. TAYLOR PUB. CO. et al. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Action by the Frank Shepard Company against the Zachary P. Taylor Publishing Company and another. From an order of the Appellate Division (198 App. Div. 638,190 N. Y. Supp. 837) reversing a judgment for defendants entered on a dismissal of the complaint by the Trial Term without a jury and granting a new trial, defendants appeal.
Affirmed.Appeal from Supreme Court, Appellate Division, Fourth Department.
Arthur V. D. Chamberlain, of Rochester, for appellants.
F. Sidney Williams, of New York City, for respondent.
[1][2] We agree with the Appellate Division that this action was not barred by the prior judgment recovered in the action to set aside the chattel mortgage as a fraud upon creditors. We also agree with the Appellate Division that this action is not barred by the statute of limitations, but we do not agree with the application of that statute as stated in its opinion. The Appellate Division was of the opinion that the ten-year statute of limitations applied. Code of Civil Procedure, § 388. This action was brought by the plaintiff as a judgment creditor under section 66 of the Stock Corporation Law (Cons. Laws, c. 59), which provides that no conveyance, assignment, or transfer of any property or security given by a corporation which is insolvent, with intent to give a preference to any particular creditor, shall be valid. ‘Every person,’ so the section reads, ‘receiving by means of any such prohibited act or deed any property of the corporation shall be bound to account therefor to its creditors or stockholders or other trustees.’ We are of the opinion that subdivision 2 of section 382 of the Code of Civil Procedure, which provides a six-year limitation for an action to recover upon a liability created by statute, governs this case. The complaint in this action demands judgment that the chattel mortgage and the sale to the defendant Shuart on the foreclosure thereof be declared invalid and void, and that the mortgagee Shuart be directed and compelled to account to the plaintiff for the property obtained by her and the proceeds thereof. The liability of the mortgagee to turn back the property received upon the sale under the void chattel mortgage and to account for the proceeds was a liability created by statute. It did not exist at common law. ‘Liability created by statute’ means a liability which would not exist but for the statute. Hawkins v. Iron Val. Furnace Co., 40 Ohio St. 507, 514.
[3][4] However, this six-year statute of limitations could not begin to run until the cause of action accrued to the plaintiff. The chattel mortgage was given by the Zachary P. Taylor Publishing Company to the...
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...Gain v. Eastern Reinforcing Serv., 193 A.D.2d 255, 603 N.Y.S.2d 189, 191 (3d Dep't 1993), quoting Shepard v. Zachary P. Taylor Publ. Co., 234 N.Y. 465, 468, 138 N.E. 409 (1923). Three factors are of central importance in this inquiry: (1) whether the plaintiff is one of the class for whose ......
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...48(2) applied when the liability did not exist at common law, or would not have existed but for a statute. (Shepard Co. v. Zachary Taylor Publishing Co., 234 N.Y. 465, 138 N.E. 409; Brady v. Rudin Management Co., Inc., 11 N.Y.2d 681, 225 N.Y.S.2d 757, 180 N.E.2d 910; Rickard v. Farmer's Mus......
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...; see also City of New York v. Kingsview Homes, Inc., 70 A.D.2d 866, 867, 418 N.Y.S.2d 62 [1st Dept 1979], quoting Shepard Co. v. Taylor Pub. Co., 234 N.Y. 465, 468 [1923] [“[A] liability created by statute ... is construed to mean a liability which would not exist but for the statute” '].)......
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