
    Rowell et al. v. Lambert.
    
      (Supreme Court, General Term, First Department.
    
    November 18, 1892.)
    Corporations—Stockholders—Liability for Corporate Debts.
    Laws 1848, c. 40, §§ 10, 11, provide that stockholders shall be severally liable for corporate debts to the amount of their capital stock until the total amount of capital of such corporation is paid in and a certificate thereof recorded. Section 14, which provided that the stock must be paid in money, was amended in 1853, so as to authorize the issue of fully-paid stock to pay for property necessary to the business, on which stock the holder should not be liable to further payments under section 10. Held that, where stock is issued for property at its value, no certificate need be filed, and in an action against a stockholder for a corporate debt the complaint must not only allege that the certificate has not been filed, but it should further show either that defendant’s stock was not issued to pay for property, or, if so issued, that the property was taken at an excess of its value.
    Appeal from circuit court, New York county.
    Action by George P. Bowell and others against Edward W. Lambert, a stockholder of a corporation, to recover from him a debt due plaintiffs from the corporation. Judgment for plaintiffs. Defendant appeals. Beversed.
    Argued before Van Brunt, P. J., and O’Brien, J.
    
      Richards & Heald, (D. W. Richards, of counsel,) for appellant. Carpenter & Hassett, (Philip Carpenter, of counsel,) for respondents.
   Van Brunt, P. J.

This action was brought to recover from the defendant, as stockholder of a manufacturing corporation, a debt owing by the corporation to the plaintiffs on the ground that no certificate of full payment of capital stock was filed, as required by the act of 1848. The defendant moved for judgment dismissing.the complaint, because there was no allegation that the stock was issued for cash, rather than for property. The motion was denied, and the plaintiffs made formal proof of debt, of judgment against the corporation, and return of execution unsatisfied, and rested. The defendant again moved to dismiss, which motion was denied, the court holding that the issuance of stock for property was an affirmative defense, and must be proved. The defendant offered no evidence, and the court directed a verdict for the plaintiffs, and from the judgment thereupon entered this appeal is taken.

In this ruling, we think, error was committed. It is plain from an examination of the complaint that the theory upon which the action was tried was that, because no certificate that the whole amount of the capital stock fixed and limited by the articles of incorporation of said corporation had been paid in, had been filed and recorded as required by sections 10 and 11 of chapter 40 of the Laws of 1848 and their amendments, a liability existed upon the part of the defendant as a stockholder; and the question involved upon this appeal is whether a cause of action is alleged against the stockholder of a corporation when the complaint alleges the ownership of stock, and the failure to file the certificate required by section 10 of the statute above mentioned. Section 10 requires that all stockholders shall be severally liable to the creditors to the amount of their capital stock until the capital is paid in, and a certificate thereof recorded. The president and trustees were, by section 11, required to make and record this certificate, and, as the law originally stood, section 14 provided that nothing but; money should be considered as payment of any part of the capital stock. In 1853 section 14 was amended by adding thereto that the trustees of such corporation might purchase property necessary for their business, and issue stock to the amount of the value thereof in payment therefor, and that the stock sol issued should be declared and taken to be full stock, and not liable to any further calls; neither should the holder thereof be liable for any further payments under the provisions of section 10. It seems, therefore, that under the language of this amendment, where stock was issued for property, the necessity for filing a certificate does not exist, as it is provided that the holder of such stock shall not be liable for any further payments under the provisions of section 10 of the act. Therefore, if the stock was issued for property at its value, there can be no further ¡call made upon the stockholder, whether the certificate is filed or not. Hence a complaint simply alleging failure to file a certificate does not set up a cause ¡of action against a stockholder, because such stockholder may be a holder of stock issued for property at its value; and this seems to have been what was held in the case of Brown v. Smith, 13 Hun, 408, and affirmed by the court of appeals, 80 N. Y. 650. A similar rule was recognized in the case of Douglass v. Ireland, 73 N. Y. 100, where it is held that, in order to maintain a recovery upon the ground that stock was issued in excess of the value of the property, it must be shown that the purchase was in bad faith, and to avoid the statute; in other words, the transaction must be impeached for fraud, but not for error of judgment, or mistaken views of the value of the property, inasmuch as good faith in the exercise of an honest judgment is all that is required. The liability resting in fraud, it is a cardinal rule of the law that the party claiming must establish the existence of the fraud, and it cannot be presumed, and that a party defendant is never compelled to establish that there was no fraud. Applying this principle to the case at bar, it is apparent that it is necessary, in order to make out a complete cause of action against a stockholder, to show either that the stock was issued apparently for cash, and no certificate filed, or that it was issued for property at a fraudulent valuation for the purpose of evading the statute. It cannot be, therefore, that a stockholder who seeks to evade liability must show the facts entitling him to relief. We think that the principles laid down in Wheeler v. Millar, 90 N. Y. 353, cited by the respondents, are entirely misapplied. The fact that a party is a holder of stock issued for property is not a defense, because the mere absence of a certificate creates no cause of action. The plaintiff must allege, if the stock has been issued for property, that it has been taken at a fraudulent valuation, in order to set out a good cause of action. It is claimed that this rule is a great hardship, and that creditors are not expected to know whether stock has been issued for cash or property, which is a fact peeuliarily within the means of the knowledge of the stockholder. That this argument cannot prevail is- strikingly illustrated by the case of Griffieth v. Green, 129 N. Y. 517, 29 N. E. Rep. 838, where the liability depended upon the fact of the stock held by the party being part of an increase of the capital stock. Under those circumstances, in order to a recovery the plaintiffs were required to allege and prove this fact. It has been suggested that the case last cited was in conflict with the previous eases with reference to the necessity of the filing of the certificate and the question of the burden of proof. We have examined the case in vain to find anything in conflict with the previous case upon this point, and we think that a reading of the statute clearly shows that no liability exists even where a certificate is not filed for stock issued for property, unless fraud is established. The j udgment should be reversed, and a new trial ordered, with costs to appellant to abide event.  