Opinion
Keith F. Driscoll, of Syracuse, N.Y., for George M. Haight, as Receiver of Salt Springs Nat. Bank.
Hiscock, Cowie, Bruce & Lee, of Syracuse, N.Y. (H. Duane Bruce, of Syracuse, N.Y., of counsel), for First Trust & Deposit Co.
BRYANT, District Judge.
This is an action to enforce a stockholder's individual liability. The action was tried without a jury. At the close of Plaintiff's case, and also at the close of the whole case, defendant moved to dismiss upon three grounds, the principal one being that the action is barred by the Statute of Limitations. Decisions were reserved.
The bank did not open after closing on March 6, 1933, pursuant to the Presidential Proclamation. On March 29, 1933, a Conservator was appointed. On January 22, 1934, a Receiver, the predecessor of the present one, was appointed. On May 1, 1934, the Comptroller of the Currency ordered an assessment of 100% on the stock of the Bank. Copy of the assessment with demand for payment, on or before June 8, 1934, was, by registered mail, served upon defendant on or about May 8, 1934. Payment has never been made. Suit was begun May 21, 1937.
There is no question but that the three year Statute of Limitations, as set forth in Sec. 49 of the New York Civil Practice Act, governs. The dispute is as to when the statute began to run, i.e., when the cause of action accrued.
Defendant introduced evidence that examinations made in August, 1933, and March, 1934, showed liabilities in excess of par value of stock. It contends the cause of action accrued, if not at time of closing at least not later than when the Comptroller had knowledge of insolvency, basing its contention largely upon the negative provision contained in Subdiv. 4 of Sec. 49 of above named Statute, which reads, 'The cause of action is not deemed to have accrued until the discovery by the plaintiff of the facts under which the penalty of forfeiture attached or the liability was created.'
This provision, as by analogy interpreted by Dumbadze v. Lignante, 244 N.Y. 1, 154 N.E. 645, The other motions, upon which decisions were reserved, are denied.
Plaintiff, under the proof, is entitled to judgment. Orders of denial and Findings may be presented on notice.