Opinion
November 16, 1938.
Present — Sears, P.J., Crosby, Cunningham, Taylor and Dowling, JJ.
Judgment reversed on the law and a new trial granted, with costs to the appellant to abide the event, unless the plaintiff shall, within ten days, stipulate to reduce the verdict to the sum of $180 and interest, as of the date of the rendition thereof, in which event the judgment is modified accordingly and, as so modified, is affirmed, without costs of this appeal to either party. Memorandum: Plaintiff's action, under the provisions of section 71 of the Stock Corporation Law, is to recover a debt due for services performed while an employee of a corporation of which the defendant was a stockholder. On the evidence we reach the conclusion that the jury were justified in finding the existence of a corporation, at least de facto, of which the defendant was a stockholder, and the employment of the plaintiff by the corporation and the service of the requisite notice upon the defendant. The action, however, so far as it relates to the recovery of a deposit made by the plaintiff with the corporation as a guaranty of the faithful performance of his duties, is not brought to recover a debt for services performed and does not fall within the scope of section 71 of the Stock Corporation Law. All concur. (The judgment is for plaintiff in an action against a stockholder to recover for work, labor and services. The order denies a motion for a new trial.)