Spellman v. Looschen
| Decision Date | 20 March 1900 |
| Citation | 56 N.E. 741,162 N.Y. 268 |
| Parties | SPELLMAN v. LOOSCHEN. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from supreme court, appellate division, First department.
Action of John H. Spellman, as receiver of the Muehlfeld & Haynes Piano Company, against Jared J. Looschen. From a judgment of the appellate division (52 N. Y. Supp. 543), reversing a judgment for plaintiff and granting a new trial, he appeals. Reversed.
John Delahunty, for appellant.
Herbert H. Walker, for respondent.
The appellate division did not state in its order that its reversal was upon the facts, and we must therefore assume that it was upon the law. The only question of law presented by the record for our review is whether the learned trial court found, without evidence to support it, any fact material to the judgment. The action was brought by the plaintiff, the receiver of the Muehlfeld & Haynes Piano Company, to set aside and have declared void a judgment recovered upon default in the city court of New York, June 9, 1896, by the defendant, Looschen, against the Muehlfeld & Haynes Piano Company, a domestic corporation, for $1,008.49. The complaint alleges that the judgment was obtained in violation of the provisions of section 48 of the stock corporation law (chapter 688, Laws 1892), which provides that ‘no * * * judgment suffered, * * * by any officer, director or stockholder when the corporation is insolvent or its insolvency is imminent, with the intent of giving a preference to any particular creditor over other creditors of the corporation, shall be valid’; and adds that ‘every transfer or assignment or other act done in violation of the foregoing provisions of this section shall be void.’ The trial court found that the judgment in the city court was so obtained. The summons in that action was served upon the president of the corporation June 4, 1896. Indorsed upon the summons was an order of the chief justice of the city court limiting the time of the service of the answer to two days. A petition for the voluntary dissolution of the Muehlfeld & Haynes Piano Company, signed by the president and Jack Haynes, two of the three directors of the corporation, verified June 4, 1896, before Malcom J. Cameron, notary public, indorsed by Blandy, Mooney & Shipman, attorneys, was filed in the county clerk's office of New York, June 5, 1896, and the usual order to show cause in said proceedings was made the same day. This exhibit shows the insolvency of the corporation. There is other evidence tending to show it.
The details of the transactions of the 4th of June admit of the finding that the attorneys of the corporation in the insolvency proceedings, at the...
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