
    Harry T. Gause, Suing on His Own Behalf, and on Behalf of All Other Creditors of the Commonwealth Trust Company Holding Debts Existing Against the Trust Company of the Republic on August 25, 1903, Plaintiff, v. George C. Boldt et al., Impleaded with The Commonwealth Trust Company, Defendants.
    (Supreme Court, New York Special Term,
    February, 1906.)
    Banking associations and corporations — Liability of stockholders fox corporate debts — Conditions precedent to action against stockholders.
    Corporations — Liability of stockholders to creditors — Judgment and. execution against corporation as condition precedent.
    Constitutional law—Provisions relating to corporations — Liability of stockholders of banks.
    Banking Law, § 162.
    Stock Corporation Law, § 55.
    General Corporation Law, § 33.
    In the simultaneous enactment of the General Corporation Law, the Stock Corporation Law and the Banking Law the intention to provide one consistent scheme of legislation relating to corporations is manifest.
    It was not the legislative intention by section 162 of the Banking Law to impose a primary and absolute liability upon the stockholders of trust companies, or to make them the single exception to the provisions of section 55 of the Stock Corporation Law and to the rule that the liability of stockholders is always secondary and contingent.
    The provision of section 162 of the Banking Law, making stockholders individually responsible for corporate debts, is subject to the provision of,section 55 of the Stock Corporation Law, prohibiting an action against a stockholder for a corporate debt until the recovery of judgment therefor and the return of an execution unsatisfied and limiting the recovery to the amount due upon the execution, although the latter section is not expressly referred to therein. These sections do not conflict with each other and both are applicable to the stockholders of trust companies formed under or subject to the Banking or Insurance Law; and section 33 of the General Corporation Law requires that they shall be so construed.
    A complaint, in an action to establish a claim as a creditor against a trust company and to enforce the statutory liability of its stockholders for the debts of the corporation, which fails to allege the recovery of a judgment against the trust company and the return of an execution unsatisfied thereon, is demurrable upon the ground that it does not state a cause of action.
    The plaintiff in such action must justify his omission to plead the recovery of a judgment against the corporation and execution returned unsatisfied, by pleading facts which bring him within the exceptions that- the courts have interpolated into the statute, and allegations that the corporation is insolvent and that plaintiff did commence an action against the trust company looking to the recovery of a judgment on his claim but that, by reason of successive demurrers interposed to his original and amended complaint and the congested condition of the trial calendars, he has been unable to obtain such judgment, although he has pressed his case with the utmost speed, are insufficient as it is only where by operation of law the recovery of a judgment is impossible that compliance with the statute may be dispensed with.
    Where the trust company has not been dissolved and no action for sequestration has been instituted, nor injunction issued restraining creditors, nor the plaintiff’s cause of action prohibited by statute, it is possible for him to recover a judgment against the corporation and issue an execution thereon.
    The effect of the constitutional provision (Const, art. 8, § 7) that: “The stockholders of every corporation and joint stock association for banking purposes shall be individually responsible to the amount of their respective shares of stock in any such corporation or association for all its debts and liabilities of every kind ”, adopted two years after the enactment of the corporation laws, was to preserve and perpetuate the liability of stockholders against possible subsequent legislation; but prior legislation, so far at least as it contemplates the performance of conditions precedent, survives because not in conflict with said constitutional provision and the ultimate liability of the stockholders is unaffected; and the mere fact that section 55 of the Stock Corporation Law prevents the present enjoyment of the protection accorded to the creditor by the Constitution, does not make it conflict therewith.
    Section 55 of the Corporation Law, being composed of separable, ■distinct parts, the provision thereof which seeks to limit stockholders’ liability for the debts of the corporation payable “within two years ” etc., being inapplicable to the present case and of doubtful constitutionality, may be eliminated without affecting the valid provisions thereof.
    That the plaintiff in his present complaint incorporated his complaint in a prior action against the trust company as sole defendant, both stating the same cause of action, renders the present complaint demurrable upon the ground of the pendency of another action between the same parties.
    
      ■ Action to establish a claim against the Commonwealth Trust Company and to enforce the statutory liability of its directors.
    Taylor & Anderson (Howard Taylor, of counsel), for plaintiff.
    Butler, Hotman & Mynderse (William H. Fain, of counsel), for defendant Mynderse.
    Wing, Eussell & Waterson, for defendant Robertson.
    Francis S. Hutchins (Charles Edward Souther, of counsel), for defendant Commonwealth Trust-Co., of Hew York.
    Allen & Sabine (Yorke Allen, of counsel), for defendant Hagemeyer.
    Frederick W. Garvin, for defendants Boldt,' Fish, Weinberg, Knox and Manning.
    McElheny & Bennett, for defendants Hallowell, Henry and Albert.
   Leventritt, J.

The plaintiff seeks in this action both to establish his claim, as a creditor, against the Commonwealth Trust Company, and to enforce the statutory liability of its stockholders. A number of the defendant stockholders have demurred to the complaint upon the ground, among others, that it does not state a cause of action in that it fails to allege the recovery of a judgment against the trust company and the return, unsatisfied, of an execution thereon, prerequisites to the right to maintain an action against them as stockholders. They invoke section 55 of the Stock Corporation Law which, so far as applicable, reads as follows: “Ho action shall be brought against a stockholder for any debt of the corporation until judgment therefor has been recovered against the corporation, and an execution thereon has been returned unsatisfied, in whole or in part, and the amount, due on such execution shall be the amount recoverable, with costs, against the stockholder.” There has been no judgment against the trust company and, of course, no execution. Nevertheless, the plaintiff contend» that the action is maintainable for the reason that the section quoted is inapplicable, either to trust companies or to thi» action, by reason of its exceptional features; and unconstitutional because it circumscribes the broader liability imposed upon stockholders by section 162 of the Banking Law and section 7 of article VIII of the Constitution. Both statute and precedent are opposed to his position.

As defined in section 2 of the General Corporation Law, a stock corporation includes “ a monied corporation ” and section 3, subdivision 4, defines a moneyed corporation as one “ formed under or subject to the banking or the insurance law.” Section 162 of the Banking Law, relating to trust companies, provides: “If default shall be made in the payment of any debt or liability contracted by any such corporation, the stockholders thereof shall be individually responsible, equally and ratably, for the then existing debts of the corporation.” Section 55 of the Stock Corporation Law prescribes the conditions under which this responsibility shall be enforced.

That it was the intention to provide one consistent scheme of legislation is manifest. This is emphasized by section 33 of the General Corporation Law which provides in part: “ If in any such (corporate) law there is or shall be a provision relating to a matter embraced in this chapter or in the stock corporation law, but not in conflict with it, such provision in such other law shall be deemed to be in addition to the provision in this chapter or in the stock corporation law relating to the same subject-matter, and both provisions shall, in such case, be applicable.”

The Court of Appeals, having under consideration section, 55 of the Stock Corporation Law, declared that “the whole scheme of legislation relating to corporations contained in the three acts, The General Corporation Law, The Stock Corporation Law, and The Banking Law, all passed on the same day, show that many of the general provisions in the Stock Corporation Law are applicable to banking as well as to other corporations. * * * The language of the section is general * * * The section is dealing with stock corporations, in which a banking corporation is included, and the limitations apply to the stockholders in such a corporation.” Hirshfeld v. Bopp, 145 N. Y. 84, 93. The fact that this section is not expressly referred to in section 162 of the Bank? ing Law has no significance in the light of section 33 of the General Corporation Law. Section 162 fixes the liability of stockholders and section 55 prescribes limitations under which it shall be enforced. There is no conflict between them, therefore both are applicable. It was not intended to impose by section 162 a primary and absolute liability upon the stockholders of trust companies, or to make them the single exception to the provisions of section 55 of the Stock Corporation Law and to the rule that the liability of stockholders is always secondary and contingent. National Bank v. Dillingham, 147 N. Y. 603, 611. The intention to cast primary liability on any class of stockholders would have been such a departure from the pronounced policy of all prior legislation and all judicial precedent that it would have been expressed in positive language and not left to vague inference.

The -statute being applicable to the stockholders of trust companies, as the plaintiff does not and cannot plead judgment recovered and execution returned he must justify his omission by facts which bring him within the exceptions which the courts have interpolated into the statute.

He alleges that he did commence an action against the trust company, looking to the recovery of a judgment on his claim; but that, by reason of successive demurrers interposed to his original and amended complaint and of the congested condition of the trial calendars, he has been unable to obtain such judgment, although he has pressed his case with the utmost speed. As a further excuse, he asserts the insolvency of the corporation. These excuses are insufficient.

The statute requires the recovery of a judgment against the corporation and the issuance and return, unsatisfied, of an execution, before the creditor may proceed against the stockholders. Unless impossible, proceedings against the corporation are imperative. Only the intervention of a paramount authority, rendering the performance of the conditions precedent legally impossible, will excuse compliance. United Glass Co. v. Vary, 152 N. Y. 121. In that case it was said: “ The decisions thus far have dispensed with the condition precedent (1) where the corporation has been dissolved by judicial decree; (2) where by final judgment in an action for sequestration a perpetual injunction has been issued restraining suits by creditors, and (3) where, by statute, such suits are prohibited. In. these cases there intervenes an impossibility within the meaning of the law, which excuses performance of the condition precedent. We think the courts should not extend the exception, beyond its present limits, unless, in possibly a new case, clearly within the principle of the decisions already made.” Again, that “ while on the one hand the stockholder should be held to his statutory liability, on the other the creditor has no right to demand that statutory conditions qualifying his liability should be disregarded or that conditions should be dispensed with, because their observance would be inconvenient or involve trouble or expense, provided they are capable of performance."

In other words, it is only where, by operation of law, the recovery of a judgment is impossible that compliance may be dispensed with.

The Commonwealth Trust Company has not been dissolved ; no action for sequestration has been instituted or injunction issued restraining creditors, nor is the cause of action prohibited by statute. Consequently it is possible for the plaintiff to recover a judgment and issue execution against the trust company. In fact, he admits that an action is now pending against that corporation, with no obstacle in the way of proceeding to judgment except the delay attendant upon the interposition of demurrers to his complaint and the congested condition of the trial calendars. In a word, he is not prevented but delayed.

The allegation of insolvency does not avail him. The statute has made the judgment and return of execution unsatisfied the only test of the inability to collect of the corporation. United Glass Co. v. Vary, supra.

This brings us to the consideration of the constitutionality of section 55 of the Stock Corporation Law.

The present Constitution was adopted two years after the enactment of the corporation laws. Article VIII, section 7, provides: “The stockholders of every corporation and joint-stock association for hanking purposes, shall be individually responsible to the amount of their respective share or shares of stock in any such corporation or association, for all its debts .and liabilities of every kind.” The effect of this provision was to preserve and perpetuate the liability of stockholders against possible subsequent legislation. The prior legislation, in so far at least as it contemplates the performance of conditions precedent, survives, because it is not in conflict with the constitutional provision. It merely treats the corporation as the primary debtor and the liability of the stockholder as ultimate and subsidiary. It treats the corporate treasury as the primary resource and compels the creditor to exhaust this resource before proceeding against the stockholder. The ultimate liability of the stockholder is unaffected. The creditor will enjoy the same protection accorded by the Constitution, after he has complied with the statute. Merely because the statute prevents the present enjoyment of that protection does not make it unconstitutional. There may be some doubt as to the constitutionality of that part of the section which seeks to limit stockholders’ liability to the debts of the corporation payable “ within two years,” etc. That provision is not applicable,, however, to the facts of this case; and, if void, may be eliminated without affecting the valid provisions of the section. The rule is that if, when the unconstitutional portion is stricken out, that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must be sustained: People ex rel. Augerstein v. Kenney, 96 N. Y. 294, 303. Constitutional and unconstitutional provisions may be expressed in the same section or, even, in the same sentence and yet be distinct and separable, so that the former may stand though the latter fall. Suth. Stat. Const., § 296. The section under consideration is composed of separable parts and, after eliminating the provision which may be void, a tangible, constitutional part remains, capable by its terms of being carried into effect consistent with the intent of the Legislature which enacted the statute.

The remaining grounds upon which the stockholders challenge the complaint are so closely involved with the one discussed that it is unnecessary to treat them separately.

The defendant trust company assigns the pendency of another action between the same parties for the same cause as a ground of demurrer.

In the plaintiff’s present complaint is incorporated his complaint in the prior action. Both state the same cause of action against the trust company, the only difference being that, in the one, the plaintiff makes the trust company the sole defendant and, in the other, he unites the stockholders. The trust company is not to be subjected to this double litigation.

The demurrers interposed are well taken and must be sustained, with costs.

Demurrers sustained, with costs.  