
    Leonard H. Shipman, as Receiver of The F. Gray Company, Respondent, v. George Curtis Treadwell and Wilhelmina Walters Collins, Appellants.
    Third Department,
    March 6, 1912.
    Corporation — action to enforce liability of resident stockholders of foreign corporation — defense — Statute of Limitations — appeal.
    In an action, maintained in this State as a matter of comity, to enforce the liability of resident stockholders of an Ohio corporation, which has been dissolved pursuant to the laws of Ohio, a provision of the Ohio statutes, that an action upon the liability of a stockholder can only be brought within eighteen months after the debt or obligation shall become enforcible against stockholders, is available as a defense under section 390a of the Code of Civil Procedure.
    Where the trial has proceeded upon the theory that such a defense was before the court, it cannot be claimed upon appeal that it was not fairly within the pleadings.
    Appeal by the defendants, George Curtis Treadwell and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 17th day of October, 1911, upon the decision of the court rendered after a trial at the Albany Special Term.
    
      
      Tracey, Cooper & Townsend [James F. Tracey of counsel], for the appellants.
    
      Charles M. Stern [Andrew J. Nellis and M. H. Nellis of counsel], for the respondent.
   Kellogg, J.:

In 200 New York, 172, it was held that the plaintiff would be permitted, in the interest of interstate comity, to bring an action in this State to enforce the liability against the resident stockholders of the Ohio corporation, which was dissolved pursuant to the laws of Ohio. The stockholders’ action to dissolve the corporation was begun December 10, 1900, and the judgment of dissolution was entered April 16, 1901. A receiver was appointed April 20, 1901. A second receiver was appointed January 13, 1902. The final decree in that action adjudging the amount due from stockholders was entered in May, 1907. This action was begun against the defendant Treadwell December 10, 1908, and the defendant Collins December 11, 1908.

The laws of Ohio provide that an action upon the liability of a stockholder can only be brought within eighteen months after the debt or obligation shall become enf orcible against stockholders. It is unnecessary in this case to discuss whether the debt became enforcible against the stockholder at the maturity of the debt, at the time of the judgment of dissolution of the corporation or at what particular túne. Apparently under the laws of that State any creditor whose debt is past due may file a petition and thereby institute a proceeding to charge stockholders with liability, and all stockholders are brought into the action and the amount of liability determined. Taking the view most favorable to the plaintiff the debt or obligation became enforcible against the stockholders at the time of the entry of the final judgment, which determined the amount due from each stockholder, and that judgment required each stockholder to pay the amount found due from him on or before June 1, 1907. This action was not .brought against either defendant until more than eighteen months after June 1, 1907. It is not necessary to' discuss whether this eighteen months’ period is a limitation upon the liability or right to bring an action, as apparently the. same result would follow in either case.. If these defendants were in Ohio and were sought to he made liable there at the time action was brought against them, the eighteen months’ limitation would be a complete answer for them, and under section 390a of the Code of Civil Procedure the defense is available to them here.

It is apparent that the cause of action arose in Ohio and by the laws of that State. The corporation was chartered there, its stock issued there and the laws of that State impose the liability upon the' stockholder. The action being maintainable here as a matter of comity, it is evident the defendants should not be held hable if the statutes of the State of Ohio furnish a defense to citizens of that State who were sued' at the time when action was brought against the defendants. I think, therefore, the limitation referred to is- a complete answer to the action. This defense was fairly foreshadowed in the answer. By stipulation the statute of Ohio was read in evidence without objection to the form of the pleading. The defendants urged upon the trial that this statute, and the facts proved, prevented a recovery. The plaintiff did not raise the question that such defense was' not sufficiently pleaded. The trial having proceeded upon the theory that the defense was before the court it is now too late to insist that it was not fairly within the pleadings. (Eppley v. Kennedy, 198 N. Y. 348.)

The judgment should, therefore, be reversed upon the law and the facts and a new trial granted, with costs to the appellants to abide the event.

All concurred.

Judgment reversed on law and facts and new trial granted, with costs to appellants to abide event.  