Simon E. Rose, Appellant, v. George W. Chadwick and George W. Lynn, Respondents, Impleaded with Bert Morris

Simon E. Rose, Appellant, v. George W. Chadwick and George W. Lynn, Respondents, Impleaded with Bert Morris. Stock Corporation Law —- action against the directors for a failure to file annual reports—the creditor need not allege a judgment recovered and an execution returned unsatisfied. In an action brought by a creditor of a business corporation, organized under the laws of this State, against its directors to recover a debt upon the ground that the directors have failed to file annual reports, as required by the Stock Corporation Law (Laws of 1893, chap. 688, § 80), it is not necessary to allege that a judgment has been recovered by the plaintiff against the corporation, and that an execution has been issued thereon and has been returned unsatisfied. Appeal by the plaintiff, Simon E. Rose, from a judgment of the Supreme Court in favor of the defendants, George W. Chadwick and George W. Lynn, entered in the office of the clerk of the county of Oneida on the 8th day of April, 1896, upon the dismissal of the complaint directed by the court after a trial before the court without a jury at a Trial Term of the Supreme Court, held in and for the county of Oneida, and also from an order entered in said clerk’s office on the 7th day of April, 1896, directing that said complaint be dismissed. T. H. Ferris, for the appellant. H. D. Pitcher, for the respondents. [MAJORITY — Follett, J.:] Follett, J.: This action was brought by a creditor of the Chadwick Leather Company, a business corporation organized under the laws of this State, against the directors thereof to recover his debt of them on the ground that they had failed to file annual reports in January, 1894, and in January, 1895, as required by the. 30th section of" the Stock Corporation Law (Laws of 1892, chap. 688). Two of the defendants answered and admitted that the reports had not been filed, and alleged that the claim of the plaintiff had been fully paid. When the case was moved for trial the complaint was dismissed on the ground that it was not alleged therein that the plaintiff liad recovered a judgment for the debt against the corporation and that. an execution thereon had been returned "unsatisfied. This was error. The recovery of a judgment and the return of an execution are not conditions precedent to the right of a creditor to recover from the directors of the corporation for failing to file reports. (Miller v. White, 50 N. Y. 137-141; Rorke v. Thomas, 56 id. 559-565 ; Green v. Easton, 74 Hun, 329 ; State Bank of Rock Valley v. Andrews, 2 Misc. Rep. 394 ; Strauss v. Trotter, 6 id. 77.) The case of The National Bank of Auburn v. Dillingham (147 N. Y. 603) arose under the 24th section of the Stock Corporation Law imposing a liability upon directors for creating an indebtedness not secured by mortgage in excess of the amount of its paid-up capital stock, and is not in point. • The judgment should be reversed and a- new trial ordered, with costs to abide the event. All concurred. Judgment and order reversed and a new trial ordered, with costs to abide the event.