Trotter v. Lisman
| Decision Date | 15 November 1910 |
| Citation | 92 N.E. 1052,199 N.Y. 497 |
| Parties | TROTTER v. LISMAN et al. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, First Department.
Action by Walter F. Trotter, as receiver of the Gilman-McNeill Company, against Frederick J. Lisman and others, individually and as copartners. From a final judgment dismissing the complaint affirmed by the Appellate Division (131 App. Div. 932,116 N. Y. Supp. 1149), plaintiff appeals. Affirmed.
The plaintiff brings this action as the receiver of the Gilman-McNeill Company, a creditor of the defendant, the Iron Railway Company, to reach assets alleged to have been received by certain stockholders of the railway company, defendant here, and to have them applied to the payment of his claim. The defendants demurred to the complaint, upon the ground that it did not state facts sufficient to constitute a cause of action, and the demurrer was sustained in the courts below. The plaintiff not having availed himself of the leave to amend his complaint, final judgment was entered dismissing the same and he has taken the present appeal therefrom.
The complaint alleged the following facts, namely: The due appointment of the plaintiff as receiver of the Gilman-McNeill Company, in an action in the circuit court of Kanawha county, in the state of West Virginia, and his investment with all of its property, assets, claims, and choses in action. The nature of the indebtedness of the Iron Railway Company, a corporation organized and existing under the laws of the state of Ohio, to the Gilman-McNeill Company and the recovery of judgment thereon in the United States Circuit Court for the Southern District of Ohio. The issuance of execution upon the said judgment and the return thereof unsatisfied. That the railway company, in pursuance of a certain contract with the Detroit Southern Railroad Company, had conveyed to the latter company its railroad property and franchises for the sum of $600,000, to be paid directly to its stockholders upon delivery of all of the shares of capital stock. That the defendants, other than the Iron Railway Company, composing the firm of F. J. Lisman & Co., had controlled the conduct of the affairs and business of the Iron Railway Company, through ownership of the capital stock, and had arranged the above contract. That said firm had received the said sum of $600,000, and that they had paid the same to the shareholders of the railway company. It is then alleged that the defendant railway company had no property or assets of any description other than the property agreed to be conveyed under the contract, and ‘now has no property or assets whatsoever, excepting its right to receive the consideration mentioned in said contract and by said distribution of said sum of $600,000 among the shareholders of the railway company it became impossible for the creditors of the railway company, including the plaintiff, to enforce at law the collection of their claims and debts.’ It is next alleged that the said sum of $600,000 was distributed by F. J. Lisman & Co. to and among the holders of the capital stock of the railway company and the members of that firm, ‘with full knowledge of the then existing indebtedness of the railway company to the plaintiff and to other creditors.’ Finally, it is alleged that the railway company, prior to the commencement of this action, was requested to bring suit against the defendants, composing the firm of F. J. Lisman & Co., for a recovery of the $600,000, diverted from the assets of the railway company, and that it had failed and neglected to do so. Judgment is demanded for a receivership of the railway company, and that the defendants Lisman and others pay over to said receiver all the moneys and assets received by them and that they be applied to the payment of the claim of the plaintiff and of any other claims properly payable therefrom.Hugh A. Bayne, for appellant.
Alfred A. Cooke, for respondents.
GRAY, J. (after stating the facts as above).
It does not appear from the complaint that the plaintiff has recovered any judgment against the debtor railway company in any court of this state; nor are any facts stated from which it would appear that an action could not have been brought against it here. It is a defendant in this action submitting to the jurisdiction of the court. Notwithstanding, therefore, the judgment which was recovered within the state of Ohio, the plaintiff in this state is to be regarded merely as a general creditor and his complaint was properly demurrable. The rule was early established in...
To continue reading
Request your trial
-
Platte County State Bank v. Frantz
... ... 20; Baxter v. Moses (Me.) 1 A. 350; Gilbert v ... Stockman (Wis.) 51 N.W. 1076; Ladd v. Judson ... (Ill.) 51 N.E. 838; Trotter v. Lisman (N. Y.) ... 92 N.E. 1052; Jones v. Green, 17 L. ed. 553; ... Moyer v. Riggs, (Kans.) 55 P. 495; Fein v ... Fein, 3 Wyo. 163; ... ...
-
Penning v. Reid
... ... (N. Y.) 390, was ... cited, but this case was reversed in McCartney v ... Bostwick, 32 N.Y. 53 ... In ... Trotter v. Lisman, a New York case, 199 N.Y. 497, 92 N.E ... 1052, the opinion of the court in the case stated that no ... facts were stated from which it ... ...
-
Penning Et At v. Reid
...Rostwick, 31 Barb. (N. T.) 390, was cited, but this case was reversed in McCartney v. Bostwick, 32 N. Y. 53. In Trotter v. Lisman, a New York case, 199 N. Y. 497, 92 N. E. 1052, the opinion of the court in the case stated that no facts were stated from which it would appear that the action ......
-
Irvine v. New York Edison Co.
...to recover in equity; but, if he did, he would be required to first take other steps preliminary thereto. This court in Trotter v. Lisman, 199 N. Y. 497, 92 N. E. 1052, held that creditors seeking the aid of a court of equity to reach equitable assets of their debtor in satisafaction of the......