
    Berwind-White Coal Mining Company, App’lt, v. George S. Ewart, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 16, 1895.)
    
    Corporations—Stockholder—Liability.
    An action to enforce the personal liability of a stockholder for debts of the corporation will not lie, until an execution has been levied upon the property of the corporation, if any, and the property sold under the execution, though the amount realized on such sale will* not satisfy the judgment.
    Appeal from a judgment dismissing the complaint.
    
      M A. Nash, for app’lt; J. B. Adams, for resp’t.
   Lewis, J.

The plaintiff is a judgment creditor of the Livingston Salt Company, a corporation organized under the business corporation law of June 1, 1875. This action was. brought by the plaintiff, as such judgment creditor, to recover of the defendant an amount equal to the stock held by him, to wit, $300, on the ground that the whole amount of the capital stock of said company had not been paid in, neither had the certificate of such payment been made and recorded, as required by law. The issue and return of an execution upon the plaintiff’s judgment against the salt company was á condition precedent to the plaintiff’s right to maintain this action. It was shown upon the trial that all the prerequisites to the right to maintain the action had been complied with, by the plaintiff, with the exception of a proper return of an execution. An execution had been duly issued to the proper sheriff, and he had, by virtue thereof, levied upon a quantity of salt, which was in fact, at the time of the levy, the property of the salt company, and was liable for sale under the execution. The evidence tended to show that the salt company had, prior to the said levy, executed a transfer of the salt to one Shattuck. This transfer was shown to have “been fraudulently made, by collusion between the directors of the salt company and Shattuck. The execution had been returned unsatisfied in part after the levy was made, and before the salt had been offered for sale under said execution. Before the defendant could be made liable in this action, the plaintiff was required to attempt in good faith, to make its debts out of the assets of the company. This, the evidence tended 'to show, it failed to do.

The conclusion of the trial court that the pretended sale of the salt to Shattuck took place on the 23d day of' February, 1893,— the same day, and presumably after, the company’s commercial paper had gone to protest—is fairly sustained by the evidence. The insolvency of the company was at the time unquestionably imment, to the knowledge of its trustees, and the transfer of the salt to Shattuck was made by them in contemplation of the insolvency of the company.

It is suggested by the appellant’s counsel that, had the salt been sold by the sheriff under the execution, there would not have been a sufficient amount realized therefrom to pay the plaintiff’s execution in full. That may be true, but the plaintiff is attempting to enforce against the defendant a statutory liability. It is not a case for balancing probabilities. Without enlarging upon the facts which are so fully and clearly set out in the opinion of the trial judge, we are satisfied that his findings and conclusions were fully sustained by the evidence, and that the judgment should be affirmed.

All concur.  