
    Frank W. Dyer and Others, Appellants, v. August Drucker, Respondent.
    
      Action by a creditor of a, corporation against a stockholder whose stock is not fully paid — insufficiency of allegations as to the time of the. defendant’s indebtedness on the stock, as to the corporation being a stock and not a moneyed, corporation, and as to the non-payment of the subscription for the stock. .
    
    The complaint in an action brought by a creditor of a corporation against a stockholder thereof, under section 54 of the Stock' Corporation Law (Laws of 1892, chap. 688, as amd. by Laws of 1901, chap. 854) upon the ground that his stock had not been fully paid up, is demurrable where the allegation-as to the defendant’s" indebtedness upon the stock relates to the time when the indebtedness of the corporation to the plaintiff was contracted, and not to the ■time when the plaintiff recovered judgment against the corporation upon such - indebtedness.
    Such a complaint is also demurrable where it fails to allege that the corporation was a" stock, and not a moneyed,, corporation, which corporation is excepted from the operation of the statute. Allegations that the coi'poration in ques-' tion was “a corporation duly organized" and existing under the laws of the State of New York,” that its name was “ City and Resort Hotel Company,’’ and that the plaintiff sold goods, wares and merchandise to it, are.not sufficient to establish that the corporation was a stock corporation and not a moneyed corporation, >
    An allegation in the.complaint that the defendant owne’d stock of .the par value of §4,800, and that" he had- paid to the corporation “ a'sum not exceeding §3.000 leaving a balance due on said stock of at least §1,800,” is not of itself sufficient, in view of the statutory provision entitling a subscriber .to. corporate stock to pay therefor in.property sold or in services rendered, to establish that the defendant’s stock was not fully paid up. The averment that the payment of §3,000 into the treasury of the corporation left. §1,800 due upon the. stock, is. -a mere conclusion of law.
    > Appeal by the plaintiffs, Frank W. Dyer and others, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Yew York on the 30th day of March, 1905, upon the decision of the court, rendered after a trial at the Yew York Special Term, sustaintaining the defendant’s demurrer to the plaintiffs’ complaint.
    
      John S. Melcher, for the appellants.
    
      Victor E. Whitlock, for the respondent.
   McLaughlin, J.:

This action was brought to recover the amount of a judgment obtained by the plaintiffs against the City and Resort Hotel Company, a Yew York corporation, and they seek to hold the defendant liable under section 54 of the Stock Corporation Law (Laws of 1892, chap. 688, as amd. by Laws of 1901, chap. 354), on the ground that he had not fully paid for his stock. So much of section 54 of the Stock Corporation Law as is material to the question involved reads as follows: “Every holder of capital stock not fully paid, in any stock corporation, shall be personally liable to its creditors to an amount equal to the amount unpaid on the stock held by him for debts of the corporation contracted while such stock was held by him. As to existing corporations the liability imposed by this section shall be in lieu of the liability imposed upon stockholders • of any existing corporation under any general or special law (excepting laws relating to moneyed corporations and corporations and associations for banking purposes) on account of any indebtedness hereafter contracted or any stock hereafter issued ; but nothing in this section contained shall create or increase any liability of stockholders of any existing corporation under any general or special law.”

The complaint alleged that “Between the 22nd day of August and the 2d day of September, 1904, the plaintiffs sold and delivered to the City and Resort Hotel Company, a corporation duly organized and existing under the laws of the State of Yew York, goods, wares and merchandise of the value of Seven hundred and twenty-five dollars and fifty cents, no part of which has been-paid; ” that thereafter the plaintiffs recovered a judgment against the hotel company; issued execution thereon, ■ which was returned unsatisfied; and “ that at the time of the contracting of the debt * * * the defendant was a stockholder in said City and Resort Hotel Company, having subscribed for and being the owner of 48 shares of stock in said company of the par value of $100 each, on which lie had 'paid into the treasiiry of said Company a sum not exceeding $3,000, leaving a balance due on said stock of at least $1,800.”

' The defendant demurred to the complaint upon the ground that it did not state facts sufficient to constitute 'a cause of action. The demurrer was, sustained and plaintiffs .have appealed.

The' complaint does not state a cause of action. . It does not show that there was anything due from the defendant to the corporation at the time the plaintiffs recovered their judgment, issued execution thereon, and the same was returned' unsatisfied. The allegation in the complaint as to the defendant’s indebtedness, in point of time, relates to the time the debt was contracted and not to the time when judgment was recovered. The words are : “ At the time of the contracting of the debt * * * he had paid * * * $3,000, leaving a balance due * * * of at least $1,800.” ' For all that appeared, the balance, if any, may have been paid after the debt was contracted and before judgment was recovered.

The complaint is also defective in another respect. It does not show that the hotel company was a stock corporation, or, in other words, that it was not a moneyed corporation, in which case the statute does not apply to it. The only allegation is that it is “ a corporation duly organized and existing under the' laws of the State of Hew York.” The name of the corporation is not sufficient to show that it was a stock corporation, nor is the allegation that goods, wares and merchandise were sold sufficient to show that it was not a moneyed corporation.

In Marshall v. Barr (27 App. Div, 97) which was an action to enforce a penalty under the Stock Corporation Law against directors of a stock corporation ptlier than a moneyed or railroad corporation, for failure to file an annual report, it was held the complaint did not state a cause of action because it did not show the corporation was a stock corporation. x

The failure, therefore, to show that this corporation was a stock corporation rendered the complaint defective.

It is also defective in that it does not state facts sufficient to show, or from which it can be inferred, that the defendant has not fully paid .for his stock. The statute referred to permits one to pay in property sold or services rendered.. The complaint would be true if he had paid the balance over and above the $3,000 in property or services. It is true that immediately following the statement of the payment of $3,000 into the treasury is a statement that there is left due so much, but this is a mere conclusion to be drawn from the facts before alleged.

The judgment appealed from, therefore, must be affirmed, with costs, with leave to the plaintiffs to amend their complaint on payment of the costs in this court and in the court below.

O’Brien, P. J., Patterson, Ingraham and Clarke, JJ., concurred. ,

Judgment affirmed, with costs, with leave to plaintiff to amend on payment of costs in this court and in the court below.  