Schnitzler ex rel. the Creditors of the Time Lite Clock Corp. v. Tartell 130 Misc. 565

Frankenthaler, J.

Plaintiff, a judgment creditor in the sum of $1,057.50, has sued in behalf of himself and all other creditors to recover from the stockholders of the debtor corporation the amounts unpaid on the shares of stock held by them. He now moves for summary judgment in the sum of $50,000 against one of the stockholders, claiming that said sum represents the amount unpaid on the latter’s shares of stock. The recent decision of our Court of Appeals in Bottlers Seal Co. v. Rainey (243 N. Y. 333) would seem to require the denial of this motion. It was there held that the liability of stockholders to ci editors for the amounts unpaid on their capital stock is joint, and not several. In such an action all the stockholders must be joined as defendants, except in certain situations, which are not here presented. This is, of course, inconsistent with the severance which the plaintiff seeks to obtain on this motion. Moreover, the plaintiff applies for judg*566ment in an amount far greater than his own judgment. There is nothing to show that the total liabilities of the corporation aggregate $50,000, the amount of the judgment applied for. It is even questionable whether an action of this character comes within the provisions of rule 113 of the Rules of Civil Practice. Motion denied.