Opinion
November 26, 1958
I. Louis Winokur for defendant.
Hawkins, Delafield Wood for plaintiff.
Defendant moves for dismissal of the complaint for legal insufficiency. It alleges that defendant was and is an officer, director and stockholder of a named domestic corporation, that there was violation of section 59 of the Stock Corporation Law by making loans and advances from the funds of the corporation to the defendant with the consent and acquiescence of the defendant as an officer and director of the corporation, that such loans as of May 31, 1958 were in excess of a stated sum and, finally, that while the loans were outstanding and unpaid the corporation became indebted to the plaintiff in a stated sum. The sole objection is that plaintiff fails to allege that it is a judgment creditor of the corporation as required pursuant to that section and, therefore, the complaint is insufficient. There is no provision in the statute requiring such an allegation. The statute creates the cause in favor of those to whom the corporation becomes indebted while the proscribed transactions are unsatisfied.
The motion is denied.