Superintendent of Banks of New York v. Moors

• Decision Date: 02 June 1936
• Citation: 2 N.E.2d 553,294 Mass. 518
• Parties: SUPERINTENDENT OF BANKS OF STATE OF NEW YORK v. MOORS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

294 Mass. 518

2 N.E.2d 553

SUPERINTENDENT OF BANKS OF STATE OF NEW YORK v. MOORS et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 2, 1936

Report from Superior Court, Suffolk County; Morton, Judge.

Action of contract by the Superintendent of Banks of the State of New York, in possession of the Bank of the United States against John F. Moors and others. The judge to whom the action was presented on a case stated reported the case without decision.

Judgment for plaintiff.

C. F. Albert, of Boston, for plaintiff.

H. A Baker, of Boston, for defendant.

LUMMUS, Justice.

Carrying out the provisions of article 8, § 7, of the Constitution of New York, adopted in 1894, its Banking Law (Laws of 1914, c 369 [Consol.Laws N.Y. c. 2]), § 120 provides: ‘ The stockholders of every bank shall be individually responsible, equally and ratably and not one for another, for all contracts, debts and engagements of the bank, to the extent of the amount of their stock therein, at the par value thereof, in addition to the amount invested in such shares.’

The Bank of United States is a banking corporation formed under the laws of New York. The defendants, are partners in a stock brokerage business in Boston, and are residents of Massachusetts. In February and March, 1930, they bought one hundred thirty shares of the stock of said bank and resold them to residents of Rhode Island, who still own them. For the convenience of the purchasers, in case of possible trading, the shares were transferred from the former owners into the name of the defendant firm, which therefore on December 11, 1930, appeared on the books of the bank to be the owner of one hundred thirty shares having an aggregate par value of $3,250, although in fact it owned none.

On December 11, 1930, the bank had a total authorized and issued capital stock of $25,250,000, represented by one million, ten thousand shares of the par value of $25 each. On that day, it appearing to the then superintendent of banks that the bank could not ‘ with safety and expediency continue business,’ he took possession of the business and property of the bank and engaged in the liquidation thereof, under the authority of section 57 of the Banking Law (Laws of 1914, c. 369, § 57 [Consol.Laws N.Y. c. 2]). Under section 72 he duly notified the creditors to present claims on or before June 30, 1931. Subsequently he determined that the excess of liabilities over assets amounted to more than $30,000,000. Thereafter, pursuant to section 80, on July 1, 1932, he determined to enforce the liability of stockholders to the full extent of the par value of their stock. He made demand in writing upon the stockholders, including the defendants, for payment of the assessment, fixing August 8, 1932, as the date for payment. No assessment or demand was ever made upon the real owners of the stock in Rhode Island. The defendants failed to pay the assessment, and this action of contract was begun to collect it.

This case was presented on a case stated, which denied to the court any power to draw inferences. G.L.(Ter.Ed) c. 231, § 126. It is reported to this court without decision, under G.L.(Ter.Ed.) c. 231, § 111.

We need not go over the ground traversed in Friede v. Sprout (Mass.) 2 N.E.(2d) 549, to show that the liability of a stockholder is contractual in its nature, and enforceable in any state where he may be found; and that the superintendent of banks of New York may sue here ‘ as an independent executive in whom has been vested by statute the cause of action sued on.’ Broderick v. Rosner, 294 U.S. 629, 641, 55 S.Ct. 589, 592, 79 L.Ed. 1100, 100 A.L.R. 1133; Broderick v. McGuire, 119 Conn. 83, 89-94, 174 A. 314, 94 A.L.R. 890. The fact that the defendants were not the real owners of the shares did not absolve them from liability. The statute fastened liability upon ‘ such persons as appear by the books of the bank to be stockholders.’ Section 120. This is a legally effective provision. In terms it is more stringent than some other statutes of similar purpose, like Mass.G.L.(Ter.Ed.) c. 172, § 24, and the National Banking Act, U.S.C. title 12, §§ 52, 63, 64 (12 U.S.C.A. §§ 52, 63, 64) under which a stockholder of record may be absolved from liability if he has actually transferred his shares and has done all he could to divest himself of the indicia of title. Commissioner of Banks v. Waltham Trust Co. (Mass.) 199 N.E. 303; Apsey v. Whittemore, 199 Mass. 65, 85 N.E. 91, affirmed sub nom. Apsey v. Kimball, 221 U.S. 514, 31 S.Ct. 695, 55 L.Ed. 834. See, also, Forrest v. Jack, 294 U.S. 158, 55 S.Ct. 370, 79 L.Ed. 829, 96 A.L.R. 1457; Seabury v. Green, 294 U.S. 165, 55 S.Ct. 373, 79 L.Ed. 834, 96 A.L.R. 1463; Pottorff v. Dean (C.C.A.) 77 F.(2d) 893. But even if this rule were to be applied to the New York statute (Richards v. Robin, 178 A.D. 535, 543, 165 N.Y.S. 780; Broderick v. Pomerantz, 148 Misc. 188, 265 N.Y.S. 425; Broderick v. Aaron, 151 Misc. 516, 272 N.Y.S. 219, 240; Richards v. Schwab, 101 Misc. 128, 167 N.Y.S. 535, 544, 545), it would do the defendants no good. They intentionally permitted the stock to stand in their names on the books after an actual transfer. Van Tuyl v. Robin, 160 A.D. 41, 145 N.Y.S. 121,affirmed 211 N.Y. 540, 105 N.E. 1101; Skinner v. Schwab, 188 A.D. 457, 469, 177 N.Y.S. 143; Broderick v. Aaron, 151 Misc. 516, 272 N.Y.S. 219, 236; Commissioner of Banks v. McKnight, 281 Mass. 467, 474, 475, 183 N.E. 720; Coyle v. Taunton Safe Deposit & Trust Co., 216 Mass. 156, 163, 103 N.E. 288. See, also, Broderick v. Aaron, 264 N.Y. 368, 191 N.E. 19, 92 A.L.R. 1422; Heiden v. Cremin (C.C.A.) 66 F.(2d) 943, 91 A.L.R. 247.

Although the real owner who has not caused his stock to be transferred into his name is liable as well as the transferor, and indeed primarily liable (Broderick v. Aaron, 264 N.Y. 368, 191 N.E. 19, 92 A.L.R. 1422; Commissioner of Banks v. McKnight, 281 Mass. 467, 474, 183 N.E. 720), the superintendent of banks is under no duty to discover him and make demand upon him in levying an assessment. Broderick v. Normandie National Securities Corporation, 240 A.D. 409, 269 N.Y.S. 718,affirmed 265 N.Y. 540, 193 N.E. 310. We need not inquire whether a completed transfer to a non-resident of New York would have relieved the defendant of liability. Broderick v. Adamson, 270 N.Y. 228, 200 N.E. 797.

The statutes of New York contemplate an assessment by the superintendent of banks, not by a court in judicial proceedings as in Friede v. Sprout (Mass.) 2 N.E.(2d) 549. The levy of an assessment under the New York Banking Law, § 80 (Laws of 1914, c. 369, § 80), is conditioned not upon actual excess of liabilities over assets, but upon the determination of that fact by the superintendent of banks, who then determines to enforce the individual liability of the stockholders and makes demand in writing upon them severally. In this the law of New York resembles our own law and the National Banking Act, under which the determination of an administrative officer is conclusive. Commissioner of Banks v. Prudential Trust Co., 242 Mass. 78, 136 N.E. 410; Commissioner of Banks v. McKnight, 281 Mass. 467, 469, 183 N.E. 720; Forrest v. Jack, 294 U.S. 158, 162, 55 S.Ct. 370, 79 L.Ed. 829, 96 A.L.R. 1457; Broderick v. American General Corporation (C.C.A.) 71 F.(2d) 864, 869, 94 A.L.R. 1359, 1368; Broderick v. McGuire, 119 Conn. 83, 88, 89, 174 A. 314, 94 A.L.R. 890. A rule permitting the actual condition of the corporation, and the need and extent of an assessment, to be tried in every jurisdiction in which a stockholder might be found, would be thoroughly impractical. Such matters ought to be settled in the state where the corporation is organized or located, either by judicial decree as in Friede v. Sprout (Mass.) 2 N.E.(2d) 549, or by administrative action. The assessment may be, and in practice usually must be, made before complete liquidation of the assets, and while the amount at least of the required assessment remains a matter of opinion. Broderick v. Adamson, 148 Misc. 353, 372, 373, 265 N.Y.S. 804, 825,affirmed 270 N.Y. 228, 200 N.E. 797.

It is true, that section 80 made the certificate of the superintendent of banks, ‘ reciting his determination to enforce the individual liability, or any part thereof, of such stockholders, and setting forth the value of the assets of such corporation and the liabilities thereof, as determined by him after examination and investigation,’ ‘ presumptive evidence’ of such facts as therein stated, and that after the amendment made by Laws of 1934, c 494, it made such certificate reciting ‘ his determination to enforce such liability, or any part thereof, and setting forth after examination and investigation the value of the assets of such corporation and the liabilities thereof as of a date prior to his determination,’ ‘ presumptive evidence’ of the necessity of such assessment and of the facts as therein stated. It is contended that the use of the words ‘ presumptive evidence’ implies that the determination of the superintendent of banks is not conclusive, and that the assessment may be upset by a judicial finding, in an action against any stockholder, that it was unnecessary in whole or in part. Such a conclusion would lead to such confusion that it ought not to be reached unless the language of the statute plainly requires it. The contrary was held, and the certificate was held conclusive, in Broderick v. Adamson, 148 Misc. 353, 370, 265 N.Y.S. 804, 822, 823, quoted and followed in Broderick v. American General Corporation (C. C.A.) 71 F.(2d) 864, 869, 870, 94 A.L.R. 1359, 1368, 1369. In Broderick v. Rosner, 294 U.S. 629, 645-647, 55 S.Ct. 589, 594, 79 L.Ed. 1100, 100 A.L.R. 1133, the matter was left open, although it was held that the declaration need...