
    Eugene Van Schaick, Appellant, v. John J. Mackin, Receiver of Real Estate Owners’ Fire Insurance Company, Respondent.
    First Department,
    December 11, 1908.
    Insurance — incorporation of stock company — subscription to stock not prerequisite — receiver —right to counterclaim for unpaid stock subscription — agreement to subscribe not enforcible.
    As the Insurance Law (§ 110) does not require the papers filed on the organization of a stock insurance company to embody or to be accompanied by any subscription for the capital stock, and as section 112 provides that upon filing the specified papers such corporation may open its books for stock subscriptions and keep them open until the full amount is subscribed, the corporation is created before subscriptions to the capital stock arc invited.
    Hence, subscriptions to the stock of such corporation are governed by section 41 of the Stock Corporation Law, and are void if the ten per cent required by said section be not paid.
    As, by virtue of the statutes, the receiver of a corporation appointed on its voluntary dissolution is authorized and directed to bring action to recover unpaid stock subscriptions unless the subscriber be insolvent, it seems that he may counterclaim for unpaid subscriptions when sued by the subscriber for services rendered to the corporation.
    But a counterclaim for the full amount of the subscription to the stock of an insurance company is subject to demurrer when it appears that an uncollectible check was given in payment of the ten per cent required by section 41 of the Stock Corporation Law, and no facts tending to show a ratification of the subscription are pleaded and the subscription in form was an attempted subscription to an insurance corporation yet to be formed. A mere agreement to subscribe is not enforcible as a subscription.
    Appeal by the plaintiff, Eugene Van Schaick, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 17th day of June, 1908, upon the decision of the court, rendered after a trial at the Hew York Special Term, overruling the plaintiff’s demurrer to a counterclaim contained in the answer.
    
      Eugene Van Schaick, for the appellant.
    
      Warren Leslie [George H. Francoeur with him on the brief], for the respondent.
   Laughlin, J.:

The plaintiff is an attorney and counselor at law and brings this action to recover for professional services rendered to the Real Estate Owners’ Fire Insurance Company. After the commencement of the action a receiver was appointed for the company and he was duly substituted as defendant. The circumstances under which the receiver was appointed are not revealed by the record now before the court, nor does it appear that the company was insolvent. The demurrer is upon the ground that the alleged defense and counterclaim to which it is interposed is insufficient in law upon the face thereof, and that the counterclaim does not state facts sufficient to constitute a cause of action. , Under the heading, “ For a separate and further defense and by way of counterclaim” the defendant pleads his appointment as receiver, his substitution as defendant, that the corporation was a domestic corporation organized on the 6th day of December, 1905, and further alleges that the plaintiff, together with other persons, on or about the date the corporation was organized, became a subscriber to the capital stock of the company by executing a subscription agreement which is set forth and shows, among other things, that he subscribed for 2,000 shares of the par value of $10 each at $15 a share and inclosed with his subsci’iption his check for ten per cent of the subscription price, payable to the order of the company, and agreed to pay the remaining ninety per cent whenever the capital has been fully subscribed and the same is called for by the board of directors,” and that his subscription immediately upon the organization of the company was duly transferred to it. It is further alleged that the plaintiff failed to pay the original ten per cent for which he gave his check, aggregating the sum of $3,000, and that on or about the 1st day of May, 1906, the board of directors duly adopted a resolution requiring him to pay the balance of his subscription, aggregating $27,000, on the 1st day of June, 1906, and that he has also defaulted in that payment. Judgment is demanded on the denials of the rendition of the se'rvices for a dismissal of the complaint and for $30,000 on the counterclaim.

The subscription agreement of the plaintiff shows that the corporation, for the capital stock of which he subscribed, was “ to be organized under the laws of the State of Mew York.” From this and the other allegations to which reference has been made, the fair inference is that the plaintiff was one of the incorporators and original subscribers to the capital stock of the company. The point is taken that the subscription agreement was void on account of the fact that ten per cent thereof was not paid in cash. This objection is based on section 41 of the Stock Corporation Law (Laws of 1892, chap. 688), which jirovides as follows :

“ § 41. Subscriptions to-stock.— If the whole capital stock shall not have been subscribed at the time of tiling the certificate of incorporation, the directors named in the certificate may open books of subscription to fill up the capital stock in such places, and after giving such notices as they may deem expedient, and may continue to receive subscriptions until the whole capital stock is subscribed. At the time of subscribing, every subscriber, whose subscription is payable in money, shall pay to the directors ten per centum upon the amount subscribed by him in cash, and no such subscription shall be received or taken without such payment.”

The decisions construing this statute and the statutes from which it has been taken are not in harmony. They are in accord to the effect that a subscription after incorporation is void unless the ten per cent is paid in cash (Black River & Utica R. R. Co. v. Clarke, 25 N. Y. 208 ; New York & Oswego M. R. R. Co. v. Van Horn, 57 id. 473), but with respect to original subscriptions prior to the incorporation, some of the authorities hold that they too are void unless the ten per cent be paid in cash (See Excelsior G. B. Co. v. Stayner, 25 Hun, 91; Perry v. Hoadley, 19 Abb. N. C. 76), and others hold that such subscriptions become valid and binding upon acceptance by the company even though the ten per cent were not paid. (Lake Ontario, etc., R. R. Co. v. Mason, 16 N. Y. 451, 458 ; Phœnix Warehousing Co. v. Badger, 67 id. 294; Beattys v. Town of Solon, 64 Hun, 120 ; United Growers Co. v. Eisner, 22 App. Div. 1; South Buffalo Natural Gas Co. v. Bain, 9 Misc. Rep. 425.) There is some difficulty in deciding which of these authorities should be deemed controlling with respect to plaintiff’s subscription to the capital stock of this company. It is alleged that the company was organized under the laws of the State of New York, and although we have no fact with respect to the nature of its business, excepting as its corporate title indicates, we think it is fairly to be inferred that it was organized as a stock insurance corporation under the Insurance Law. The law with respect to the incorporation of such companies differs radically from that with respect to the organization of most other stock corporations, in that it does not provide for the tiling of a certificate of incorporation containing subscriptions to the capital stock and makes provision for opening the books for subscriptions to capital stock only after certain other preliminary steps have been taken. Section 110 of the Insurance Law (Laws of 1892, chap. 690) provides in effect, so far as material to the question under review, that thirteen or more persons may become a fire insurance corporation by filing in the office of the Superintendent of Insurance a declaration, as therein provided, which requires, among other things, a copy of the charter which they propose to adopt, and that the amount of capital stock to be employed in the business be stated, but does not require that it shall embody or be accompanied by any subscription to the capital stock; and it is further provided that such declaration shall only be filed after publication, as therein prescribed, of notice of intention to form the corporation. Subscriptions to the capital stock are regulated by section 112, which provides that upon filing the declaration and copy charter and proof of publication of notice of intention to form the corporation, “such corporation, if a stock corporation, may open books for subscription to its capital stock and keep the same open until the full amount specified in the charter is subscribed.” The effect of these provisions is, I think, that the incorporators become a corporation before subscriptions to the capital stock are invited and, if so, it would seem quite clear that the subscriptions would fall within the provisions of section 41 of the Stock Corporation Law, and would be void if the ten per cent were not paid. Although a check was given in payment of ten per cent of plaintiff’s subscription in the case at bar, it appears that it was never paid, for the defendant seeks to counterclaim not only the remaining ninety per cent of the subscription, but the ten per cent for which the check was given, as well. No facts tending to show a ratification of the subscription by plaintiff are pleaded. If the facts pleaded showed a valid subscription, the receiver would be authorized to interpose the counterclaim, for by virtue of section 69 of title 4 of chapter 8 of part 3 of the Revised Statutes (2 R. S. 469), which is made applicable by the provisions of paragraph 5 of subdivision 3 of section 1 of chapter 245 of the Laws of 1880 (S. L. of 1880, vol. 1, p. 368) to a receiver appointed in proceedings for the voluntary dissolution of a corporation under section 2429 of the Code of Civil Procedure, the receiver is authorized and directed to bring an action to recover on any unpaid subscriptions to the capital stock, unless the subscriber he insolvent. The counterclaim, however, cannot be sustained for the reason that the facts do not show that the plaintiff’s subscription was valid and enforcible. In form, the subscription is an attempted subscription to á corporation to be formed. At most it could only be construed as an agreement to subscribe. It does not even appear that plaintiff was one of the incorporators. A more agreement to subscribe is not enforcible as a subscription. (General Electric Co. v. Wightman, 3 App. Div. 118.).

It follows, therefore, that the interlocutory judgment should be reversed, with costs, and the demurrer sustained, with costs, with leave to the receiver to amend upon payment of costs of this appeal and of the demurrer.

Patteeson, P. J., McLaughlin, Houghton and Scott, JJ., concurred.

Judgment reversed, with costs, and demurrer sustained, with costs, with leave to defendant to amend on payment of costs.  