Dennistown v. Barr. Kidder, 106 N. Y. Rep. 32; Farmers' & Mechanics' Bank v. Logan, 74 Id. 568; Cole v. Mann, 62 Id. 1). These cases are uniform in holding that the title remains in the banker until the merchant shall have fulfilled the engagement, under which he procured the credit of the banker for the purchase of the goods, and, that, except as to bona fide purchasers from the merchant not warned of the banker's right or title, possession by the merchant remains that of or subject to the rights of the banker. The situation is treated as a species of conditional sale, not consummated until the banker is made good for the use of his credit, and equities are administered accordingly. To the same effect are two recent and well-considered cases, decided by Messrs. William G. Choate and William N. Cromwell respectively. In the Logan case, supra, there was the hardship that the claimant against the banker was a purchaser at the Produce Exchange, who was nevertheless held to be chargeable with a special endorsement on the bill of lading, signifying what the right of the banker was, and which was considered effectual to put the purchaser on his guard in the absence of protection, in this State, of the law of market overt. There followed legislation, requiring contracts, for conditional sale of property on credit, to be filed and providing that, in the absence of such filing and where sale is accompanied by change of possession, all reservation to a vendor, of ownership, shall be "void as against subsequent purchaser and mortgagees in good faith " (See ch. 315 of the Laws of 1884, amended in 1885, 1886, 1888 and 1892). It will be observed that the amendments to the Act of 1884 exclude from its operation furniture, pianos, bicycles, railway equipments and a variety of other articles, but leave subject to its operation the great mass of transactions with foreign nations, in which the City and State of New York are so deeply concerned. With the policy of the legislation, however, we are not at liberty to quarrel. It Dennistown v. Barr. suffices to say that it is limited, in express terms, to bona fide purchasers and mortgagees, neither of whom are before us with equities calling for attention. It is a settled rule of law that neither general creditors nor assignees for their benefit come within that designation as against the holders of specific liens or title and the equities incident to them. There is no room for doubt of the right of the plaintiffs to retain the coffee until made good for their acceptances against it. Nor was their right impaired by the fact that they entrusted Thomas M. Barr & Co. with possession and with power to make sales of it, upon terms reserving to them the title and right of possession of the proceeds, and notwithstanding the fact that upon other and previous occasions such actual possession of proceeds had not been exacted by them from Messrs. Thomas M. Barr & Co. (See Moors v. Kidder, supra, p. 46, and Cole v. Mann, supra). The sudden call of the plaintiffs upon Thomas M. Barr & Co., on the occasion of their failure, for possession of the proceeds, found them unable to meet the call. There is no evidence of any deliberate intention on the part of Thomas M. Barr & Co. to wrong the plaintiffs, but their inability to make good their engagements justified the plaintiffs in the summary assertion of their rights. So with Mr. Sherman, the assignee. He has exhibited entire good faith on his part and has shown every disposition to exercise his trust powers in a way to avoid prejudice to the rights of the plaintiffs, in so far as he could do so consistently with his views of trust duty to creditors. While blame is not to be imputed to him for prudence and caution in this regard, yet he has in effect not relieved the plaintiffs from the necessity of judicial process for the attainment of their rights. Under somewhat similar circumstances, Mr. Cromwell saw his way to allowance to an assignee, out of the fund, of both commissions and counsel fees. I find myself unable to fol Klueg v. Bosch. low the precedent. It so happened that, at the time of the assignment, the coffee remained wholly unpaid for by the purchaser. There had thus been no actual intermingling of the proceeds with the general assets of Thomas M. Barr & Co. A decree in favor of the plaintiffs takes possession of these proceeds, not through the assignment or the assignee, but by superior title, and acquits the assignee of even a momentary responsibility for possession. But if it be conceded that the assignee should be reimbursed for his expenses and possibly for his labor in guarding the assigned estate and in litigating the claims of the plaintiffs, yet this expense and remuneration should be borne by the assigned estate rather than by what is decided to have been, from the beginning, lawfully claimable by the plaintiffs. With regard to the costs of the plaintiffs, equity would seem to require that they be borne by Thomas M. Barr & Co. I see no ground for charging them upon either of the other defendants. The Central American Trading Company did all that was incumbent upon them when they deposited the purchase price of the coffee with a depository consented to by the parties. And upon the whole, I am inclined to think that inasmuch as the plaintiffs deferred their claim to possession of the proceeds until the making of the assignment, they should be content to look only to the assignors for the resulting expenses. KLUEG v. BOSCH. Supreme Court; Circuit, Kings County; June, 1893. 1. Manufacturing companies; liability of stockholders.] A stockholder of a company formed under the Manufacturing Act of 1848, who is a creditor of the company, cannot bring an action to recover his debt against another stockholder upon the lat Klueg v. Bosch. ter's liability for the debts of the company arising from a failure to file and record the required certificate as to the payment of he company's capital. Following Bailey v. Bancker, 3 Hill, 188. 2. The same.] It seems that the only remedy of the creditor stockholder in such a case is an action against all the stockholders for contribution. Trial at circuit without a jury. Action by Jacob Klueg against John Bosch. The plaintiff, a creditor of the Brooklyn Publishing Company, sued the defendant, as a stockholder, to recover a debt due him by the company, seeking to charge the defendant with the statutory liability of stockholders under 10 of chap. 40 of the Laws of 1848, which renders stockholders liable on their stock to all creditors of the company where the capital stock has not been fully paid, or a certificate of such payment duly filed. It was conceded that the plaintiff himself was a stockholder in the same company, and for this reason defendant moved to dismiss. Daniel plaintiff. Cameron (Charles Reinhart, Attorney), for Thomas E. Pearsall and Isaac M. Kapper, for defendant. I. The rule is well settled that a stockholder, who is also a creditor, cannot bring an action against his costockholder to enforce; the only remedy for such a creditor is in equity by a bill for contribution (Citing Bailey v. Bancker, 3 Hill, 188; Beers v. Waterbury, 8 Bosw. 396; Richardson v. Abendroth, 43 Barb. 162; Andrews v. Murray, 33 Id. 354; Deming v. Puleston, 33 Super. Ct. 235; Meisser v. Thompson, 9 Brad. (Ill.) 368; 108 Ill. 359; Thayer v. Union Tool Co., 70 Mass. 75; Dodge v. Havemeyer, 4 State Rep. 561; McDowall v. Sheehan, 129 N. Y. 200). Pondir v. N. Y., Lake Erie, etc., R. R. Co. KELLOGG, J.-This action was tried by the court without a jury. It presents the single question as to whether a stockholder in an insolvent corporation may bring an action at law against another stockholder on a liability created by failure to file a certificate and have the same recorded in the county clerk's office showing the entire capital stock to have been paid in as provided by the Laws of 1848. It seems to have been well settled in this State by decisions of the courts, which have been uniform so far as the same question has arisen, that no such action will lie. Convincing reasons why such an action will not lie were given in the case of Bailey v. Bancker (3 Hill, 188). I think the plaintiff in this case must be relegated to his action in equity against all stockholders; and that this complaint should be dismissed with costs.* PONDIR v. N. Y., LAKE ERIE, ETC., R. R. CO. N. Y. Supreme Court, General Term, First Department, October, 1893. 1. Corporations.] Where a corporation, holding the majority of the stock of another corporation, elected the directors of the latter *The decision in Bailey v. Bancker, 3 Hill, 188, was placed upon the ground that the stockholders in such a case are to be regarded as partners, or, what is the same thing, as an unincorporated association, and that one partner cannot be allowed to sue another for a debt due from the whole firm. There is a distinction, however, between the liability of a stockholder in such a case, and the liability of a trustee for failing to file an annual report, see note to Chase v. Lord, 6 Abb. N. C. 258; and a creditor of the corporation, though a stockholder, may hold a trustee liable for failure to publish an annual report in absence of anything to show that as stockholder he became personally liable for the debts, Sanborn v. Lefferts, 16 Abb. Pr. N. S. 42; S. C., less fully, 58 N. Y. 179. |