Opinion
Argued March 9, 1899
Decided April 18, 1899
John Lansing for appellant. E.C. Emerson and Henry Purcell for respondent.
The question up for decision is, was the defendant on the 21st day of December, 1894, a director of the corporation to which the plaintiff on that day made the loan that she now seeks to recover? It is not pretended that there exists any liability against the stockholders of this insolvent corporation in favor of its creditors. The directors omitted to file reports for the years 1892, 1893, 1894 and 1895, as required by section thirty of the Stock Corporation Law, by reason whereof they became personally liable for all the debts of the corporation "then existing, and for all contracted before such report shall be made." This clause, which was taken from the twelfth section of the Manufacturing Act (Laws 1848, chap. 40), has received construction in this court, it being held that the liability for default in publishing the required annual report is limited to debts contracted while the director continues in office, and does not include a debt incurred after he ceases to be a director, although the default continues. ( Shaler and Hall Q. Co. v. Bliss et al., 27 N.Y. 297.) The defendant was a director in 1892 and 1893, and in those years failed to perform his duty by causing a report to be made and filed as required by the statute, but the debt of the corporation to the plaintiff was not contracted until December 21st, 1894, and if the defendant ceased to be a director before that time, the statute imposed no liability upon him as to its payment. The defendant was a director in the year 1893, and in the absence of the election of his successor by the stockholders of the corporation, there were two methods by which he could cease to be a director; first, by resigning the office, which he could at any time do, and, second, by an absolute sale of all of his stock. The twentieth section of the Stock Corporation Law provides: "If a director shall cease to be a stockholder, his office shall become vacant." Now this defendant did not resign, but on the 27th day of December, 1893, nearly a year before this plaintiff loaned her money to the corporation, he sold his shares to John Sinclair, the plaintiff's husband, in consideration of one dollar, and assigned and delivered the certificates to the purchaser. Sinclair took the certificates, but did not cause them to be transferred to him on the books of the corporation until September 19th, 1894, at which time he surrendered the certificates to the corporation and received a new certificate for the shares. The defendant, therefore, disposed of his stock about a year before the debt was contracted, and the transfer was duly made on the books of the corporation more than three months before the loan was made. The several statutes providing for the creation of corporations have usually contained a requirement, in effect, that a director shall have at his election and throughout his term of office a certain number of shares of stock, thereby manifesting the legislative policy of absolutely assuring the management of the affairs of such corporation by persons only who have a personal pecuniary interest in its success or failure.
Before this court in C.N. Bank v. Colwell ( 132 N.Y. 250) came an action by a creditor against a former director of an insolvent corporation created under the Laws of 1875, chap. 611. The defendant denied that he was a director at the time of the contraction by the corporation of the debt that the plaintiff sought to recover of him. It was made to appear that he had, as matter of fact, parted with all beneficial interest in and control over every share of stock that had been issued to him prior to that time, and this court held that the requirement of section ten of that act, that the directors "at their election, and throughout their term of office, shall be stockholders in such corporation to at least five shares," executed itself and operated to divest the defendant of title to the office which he had ceased to be qualified to hold. It is obvious that the language employed in section twenty of the Stock Corporation Law is still more direct and positive than that of the act of 1875, which was before the court in Colwell's case. There the requirement was that directors should be stockholders to the extent of five shares, not only at their election but through their term of office, and the court held that whenever they ceased to be stockholders, as required by the statute, their office ceased, but under this statute the legislature declares that if a director ceases to be a stockholder his office shall become vacant. If then this defendant ceased to be a stockholder prior to the contracting of this debt, his office as a director became vacant, and he was not chargeable with indebtedness incurred by the corporation subsequent thereto.
But the appellant insists that the defendant did not cease to be a stockholder. It is not questioned that he did assign and transfer his stock to the treasurer of the corporation more than a year before this debt was contracted and more than two years before the failure of the corporation. Nor is it disputed that the purchaser took possession of the stock and surrendered the certificates to the corporation and obtained a new certificate to himself for the number of shares represented by the old certificate. But, it is said, this was done in contemplation of the insolvency of the corporation and for the purpose of relieving the defendant from liability as a director, and, therefore, the attempted transfer of the stock was void, and there was, in legal effect, no transfer whatever. The statutory provision invoked in support of this contention is to be found in section forty-eight of the Stock Corporation Law and reads as follows: "No stockholder of any such corporation shall make any transfer or assignment of his stock therein to any person in contemplation of its insolvency. Every transfer or assignment or other act done in violation of the foregoing provisions of this section shall be void." The construction of this provision, for which the appellant contends, would render the transfer of stock as between the transferrer and a transferee void, although the transaction was free from fraud. It would render a certificate of stock so transferred void as against a corporation assenting to the transfer, no matter to what extent it may have gone in recognizing the rights and liabilities of the purchaser of the stock, and this we have lately held will not result, even where the shares are assessable. ( Rochester Kettle Falls Land Co. v. Raymond, 158 N.Y. 576.) This provision of the statute should be construed in the light of the rest of the section, which readily declares the purpose of the legislature. The section is entitled "Prohibited transfers to officers or stockholders." The first sentence prohibits any transfer of the property of the corporation to any of the officers, directors or stockholders for the payment of any debt, where such corporation has refused to pay any of its notes or other obligations. The second sentence prohibits any assignment of any of the property of the corporation to any officer, director or stockholder when insolvency is imminent, for the purpose of giving preferences. The sentence next following provides for an accounting by the intended beneficiary for any property which may have been received by him in violation of the prohibitions contained in the first two sentences, and the fourth sentence is the one we have quoted, which prohibits any transfer or assignment of stock in contemplation of the insolvency of the corporation. Now the scheme of this section is to protect the creditor from the misconduct of the officers, directors and stockholders of a corporation; to insure those who trust either to the solvency of the corporation, to the honor of its officers, or to the liability of stockholders, from being defrauded by the officers, the directors or stockholders of such corporation. There are corporate situations in which the stockholders are liable, within certain limitations, for the debts of the corporation, and there have been instances in the past where stockholders, realizing that the insolvency of the corporation is imminent, and that they are likely to lose not only the amount already invested in the shares, but possibly much more besides, have secured for the shares an apparent purchaser, who, being himself in a state of insolvency, was willing, for a very trifling, temporary consideration, to add to his obligations. Transfers of such a character, made for the purpose of relieving the shareholder from his statutory or contractual liability, are aimed at by this provision of the statute.
The appellant cites two authorities in this state which he claims so declare the state of the law upon this subject as to make the statute (if it be given no broader construction than we think belongs to it) wholly unnecessary, for it but restates the law as laid down by the courts. Without conceding that, if his premises be accurate, his argument is justified, we note that one of the two cases cited does not show it to have been the law of this state prior to the adoption of the statute that makes every transfer of stock of a corporation whose insolvency is imminent void as against the creditors of the corporation having a right to resort to the stockholders for the collection of debts. The authorities cited are Nathan v. Whitlock (3 Edwards Chan. 215; affd., 9 Paige Chan. 152) and Veiller v. Brown (18 Hun, 571). In the latter case the defendants had judgment at the Special Term, which was reversed at the General Term, not on the ground that a stockholder could not relieve himself from liability by a bona fide sale of his stock, but for the reason that the evidence disclosed that the sale was not bona fide in that a secret understanding or trust existed in favor of the transferrer.
This statute makes the law on that subject very different and along much broader lines. Had it been in existence at the time the cause of action arose in Veiller's case, it would have been unnecessary to introduce evidence tending to show that the sale was not bona fide and that there was a secret understanding by which the stockholder retained a beneficial interest in the stock. All that would have been required to be shown would be that the transfer was made in contemplation of its insolvency. If we are right in the position taken, that the object of the statute was to prevent solvent stockholders from escaping their statutory liabilities to creditors of corporations, as well as their contractual liability to corporations not assenting to the transfer, then there was nothing to prevent the defendant from making absolute disposition of his shares December 27th, 1893. It matters not that he may have been of the opinion that ultimately the corporation would fail and that the effect of the sale of his stock would be to relieve himself from liability as a director. It was his right, if he saw fit, to get rid of the office of director for the purpose of avoiding liability for debts thereafter to be contracted, and he could accomplish that result either by resigning or by an absolute sale and transfer of his stock. He took the latter course, and made what is conceded to be an absolute sale and transfer of his stock without any reservation whatever, and the statute so operated on this act that he ceased to be a director, and hence is not liable for this debt of the corporation, which was contracted a long time thereafter.
The judgment should be affirmed, and judgment absolute ordered for the defendant on the stipulation, with costs.
All concur, except VANN, J., not voting.
Judgment accordingly.