« ΠροηγούμενηΣυνέχεια »
capital stock of which was $13,000, divided in 130 shares of $100 each.
That on the 17th of August, 1853, the said Hudson River Iron and Machine Company, at the city of NewYork, purchased of the plaintiff certain Scotch pig iron, of the value of $2,030, for and in consideration of which they then and there made and delivered to the plaintiff their promissory note in writing, under the hand of Simeon Mears, their duly authorized treasurer, for the sum of $2,030, whereby, six months after date, for value received, they promised to pay to the order of S. Mears $2,030, at the Bank of Fort Edward, and which note was then and there duly endorsed by the said Mears, and delivered to. the said plaíntiff
. That about the time of the maturity of said note, to wit, on the 18th day of February, 1854, the said The Hudson River Iron and Machine Company, at the city of NewYork, in consideration of said purchase of said iron, and in part renewal of said note, then and there made and delivered to the said plaintiff their promissory note in writing, under the hand of Simeon Mears, their duly authorized treasurer, for the sum of $1,015, whereby three months after date, for value received, they promised to pay
to the order of S. Mears $1,015, with interest, at the Bank of Fort Edward, and which note was then and there duly indorsed by the said Mears, and delivered to the said plaintiff.
And the said plaintiff further states, that the said note, bearing date the 18th day of February, 1854, and payable three months after date at said Bank of Fort Edward, was not paid at' maturity, or any part thereof, and he caused an action to be brought, to recover the amount thereof, in, the Supreme Court, in his favor as plaintiff against the said corporation as defendant, and such pro
ceedings were thereupon had, that on the 11th day of August, 1854, judgment was duly recovered, in favor of said plaintiff against said defendant, for $1,097.04, damages and costs, and the roll thereof was, on that day, duly signed and filed, and such judgment docketed in the office of the clerk of the county of Washington; that thereafter, and on the 11th day of August, 1854, an execution was duly issued to the sheriff of said county of Washington, directing him to levy the amount of said judgment, with interest from the recovery thereof, as aforesaid, of the personal property of the defendant, and if sufficient could not be found, then out of the real property belonging to said defendant on the day the judgment was docketed as aforesaid, or at any time thereafter; that said execution was subsequently, and on the 14th day of September, 1854, or thereabouts, duly returned by said sheriff to the clerk's office aforesaid, wholly unsatisfied.
[The complaint here set out various other demands; and the recovery, in like manner as above, of judgment, issuing and return of execution, &c.]
And the said plaintiff further states that said judgments, and each and every of them, still remain in full force, wholly unpaid and unsatisfied.
And the said plaintiff further states, that the said corporation, immediately after its formation, as aforesaid, commenced the business for which it was incorporated, and continued such business till the 25th day of May, 1854, when it was, and ever since has been and now is, wholly insolvent, and unable to pay its just debts and liabilities, and its business thereupon wholly ceased. And he further states, that said corporation has not, since said 25th day of May, aforesaid, done any manufacturing business whatever, but, on the contrary, ceased the same entirely, and was then, and now is, totally insolvent.
That the said corporation, by the facts aforesaid, became and was dissolved, at the time last aforesaid.
That said corporation has remained wholly insolvent for one whole year immediately preceding the commencement of this action, and for one year immediately preceding the commencement of this action has neglected and refused to redeem its notes and other evidences of debt in specie or other lauful money of the United States, and has, for one year immediately preceding the commencement of this action, suspended and entirely ceased the ordinary business as such incorporation, and has, for one year immediately preceding the commencement of this action, entirely ceased all business of said incorporation.
And he further states, that when the said indebtedness was contracted to the said plaintiff, and every part thereof, the said defendants, Jonathan S. Beach, Frederic D. Hodgman, Daniel W. Wing, Russell W. Pratt and Simeon Mears, were the trustees and directors of said corporation, and continued so to be till long after the whole thereof had been contracted ; and that when the said indebtedness was contracted, the total amount of the debts of said corporation, at that time owing by said corporation for deposits, or bond, bill, note or other contract, over and above the actual deposits with the said company, exceeded three times the amount of the capital stock of said corporation, actually paid in; and the persons last aforesaid, at the time last aforesaid, were the directors, under whose administration the same happened, as last aforesaid, and did not, nor did either of them, cause their or either of their dissent to be entered at large on the minutes of the said board of directors at the time the same happened, and were each and every of them present at the time the same did happen, as last aforesaid ; that such debts, so then owing as last aforesaid, amounted, over and above the debt and demand of the said plaintiff, to at least the sum of $80,000. And the said plaintiff insists that the individual defendants abovenamed, thereby, by virtue of the statutes relative to incorporations, became and are liable to the said plaintiff
for his several debts aforesaid 1 And the said plaintiff demands judgment, that the said The Hudson River Iron and Machine Company may be judicially declared to have been dissolved at the time aforesaid, and that the said defendants may be required to pay to the said plaintiff the amount of his several judgments, with interest and costs, and that he may have such other or further relief as shall be deemed just, with his costs. HUGHES & NORTHUP,
1 This is a mere legal inference, and is unnecessary and improper.
Complaint in the nature of an audita querela, asking that a judgment which has been satisfied may be adjudged to be discharged and extinguished, and that the plaintiff therein may be enjoined from proceeding on an execution upon such judgment."
SUPREME COURT-SARATOGA COUNTY.
Darling P. Mallory
The plaintiff complains of the defendants, for that on the 31st day of March, 1853, the defendant, Titus Norton, commenced an action against the plaintiff before John Gifford, Esq., then and still a justice of the peace in the
| The case is reported 21 Barb., 424, and the following is an extract from the opinion at the General Term:
“ An audita querela is where a defendant against whom judgment is recovered, and who is therefore in danger of execution, may be relieved upon good matter of discharge, which has happened since the judgment, as if the plaintiff has given a general release, or if the defendant has paid the debt to the plaintiff without procuring satisfaction to be entered on the record, and where the party has had no opportunity of pleading it, &c. In all such cases an audita querela lies, in the nature of a bill in equity, to be relieved against the oppression of the plaintiff. (3 Black. Com., 305.) This remedy seems to have been adopted, in our state, with the common law ( 2 John. Cas., 258, 261; 1 John., 532; 9 id., 221; 17 id., 484; 4 id., 191 ), and in other states. ( 10 Mass. Rep., 101; 17 id., 153; 2 Conn. Rep., 700.)
“It is not abolished by the Code, but preserved. (Sec. 468; 5 How., 51.) As matter of necessity, in my judgment, it should exist in this case.” Per ALLEN, J., in Mallory o. Norton, 21 Barb., 43.