
    The City of New York, Respondent, v. The Eppinger & Russell Co., Appellant.
    First Department,
    December 30, 1915.
    Corporations — transfer of property from old to new corporation — action against new corporation to recover on debt of old corporation — pleading — complaint not stating cause of action.
    Where a domestic corporation, after a cause of action had accrued against it, transferred all its property to a new corporation of the same name and practically the same membership and the creditor obtained judgment against the old corporation, a complaint in a second action brought against the new corporation fails to state a cause of action where it merely sets forth the facts aforesaid and in addition alleges that the execution has been returned unsatisfied, that the former assets of the old company were sufficient to pay all liabilities including the plaintiff's claim and that the officers of the old company at the time of the transfer knew of the existence of the plaintiff’s claim. This, because there is no allegation that the new corporation knew anything of the plaintiff’s claim, no allegation of fraud, or any facts which would make the new corporation responsible for the judgment obtained against the old company.
    
      Appeal by the defendant, The Eppinger & Russell Co., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 22d day of November, 1915, denying defendant’s motion for judgment on the pleadings, dismissing the complaint after an answer had been served.
    
      Safford A. Crummey, for the appellant.
    
      Charles J. Nehrbas of counsel [Terence Farley and Joseph Quittner with him on the brief], Lamar Hardy, Corporation Counsel, for the respondent.
   Clarke, J.:

The city of New York alleges for a first cause of action in its complaint that the Eppinger & Russell Co. (hereinafter designated as the defendant) is a domestic corporation with a place of business in the borough of Manhattan; that the Eppinger & Russell Company (hereinafter designated as the old company) was a domestic corporation with a place of business in Long Island City and also in the borough of Manhattan; that on or about the 19th of November, 1902, plaintiff duly commenced an action against the old company in the Supreme Court; that on July 10, 1906, judgment was rendered and duly filed and entered against said old company in favor of the city for the sum of $739.49, and the amount of said judgment remains wholly unpaid.

That on or about August 4, 1906, an execution upon said judgment was duly issued to the sheriff of New York county and returned by said sheriff wholly unsatisfied.

That after the accrual of the cause of action in which judgment was awarded, said old company transferred all its property, both real, and personal, to the defendant herein, which said property is now held by the defendant herein, and that no part or portion of the assets of said old company was reserved to pay the above-mentioned demand or claim of the plaintiff.

That the assets of the old company were more than enough to pay all the debts and liabilities due and owing to the creditors of the old company, including the claim or demand of this plaintiff.

That thereafter and on or about the 25th day of March, 1907, said old company was dissolved.

That the defendant was organized and incorporated after the plaintiff’s cause of action accrued, and the stock of the defendant was issued substantially to the same persons who owned the stock of the said old company.

That the officers of the said old company at the time of the transfer by it to the defendant of all the old company’s assets and property well knew of the existence of plaintiff’s said claim.

That there is no property, real or personal, of said old company out of which plaintiff’s judgment could be paid other than that transferred to defendant as aforesaid.

For a second cause of action similar allegations are made in regard to an action brought September 30, 1903, in which judgment was obtained July 14, 1906, for $697.07.

The answer admits certain allegations and denies others. It also alleges that the complaint does not state facts sufficient to constitute a cause of action. The defendant thereupon moved for judgment on the pleadings, which motion was denied, and the defendant appeals.

The learned court based its decision upon Darcy v. Brooklyn & New York Ferry Company (127 App. Div. 167; affd., 196 N. Y. 99). That case is clearly distinguishable. It was an action brought under sections 1781 et seq. of the Code of Civil Procedure (now Gen. Corp. Law [Consol. Laws, chap. 23; Laws of 1909, chap. 28], § 90 et seq.) by a judgment creditor of the Brooklyn and New York Ferry Company against its managing directors to recover the value of property of said corporation transferred by them in violation of their duties. The action was in equity to compel them as trustees to account for theii breach of duty. It was not against the company to which the assets of the judgment debtor company had been transferred. But in Teague v. Ridgway Company (145 App. Div. 277) the plaintiff, a judgment creditor of the Ridgway-Thayer Company sued it, its directors and the Ridgway Company. The Ridgway Company demurred and a motion by the plaintiff for judgment on the pleadings was granted. On appeal, Mr. Justice Scott said: The complaint is modelled after that in Darcy v. Brooklyn & New York Ferry Co. (127 App. Div. 167; 196 N. Y. 99). The plaintiff is a judgment creditor of a corporation known as the Ridgway-Thayer Company, and the purpose of the action is to recover from the individual appellants, and another, who were directors of said corporation, the amount of plaintiff’s judgment, on the ground that said directors sold all the assets of said corporation to the defendant Ridgway Company, and have distributed the proceeds among the stockholders of said Ridgway-Thayer Company without paying or providing for plaintiff’s claim. * * * So far as concerns the Ridgway Company the demurrer for general insufficiency is well taken. The complaint contains no allegation sufficient to charge it with liability for the debts of the Ridgway-Thayer Company. It is not alleged that it knew of plaintiff’s claim, or was concerned with any fraudulent attempt to injure him, nor that it did not pay value for the assets transferred to it. * * * It follows that * * * the order for judgment upon the pleadings * * * as to the appellant Ridgway Company * * * must be reversed and the motion for judgment denied.”

We regard that decision as conclusive upon this appeal. The complaint states no cause of action against the defendant, the new company. There is no allegation that it knew anything of the plaintiff’s claim; there is no allegation of fraud, and there are no facts stated which make it responsible for the judgment obtained against the old company.

The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements to the appellant, and the motion for judgment on the pleadings granted, with ten dollars costs.

Ingraham, P. J., Laughlin, Dowling and Smith, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  