And it is further ordered, that the said trustee in default of pay. ment by those to whom such call has been duly made is authorized and empowered to institute such proceedings either at law or in equity against said stockholders as may be necessary to recover the said assessment. Cross-reference. See § 70, Vol. II, ante. D. J. Form No. 404 COMPLAINT TO RECOVER UNPAID STOCK SUBSCRIPTIONS his complaint against the above named defendants respectfully shows and alleges to this Court: First. That the .... Company, hereinafter mentioned, is a corporation organized and existing under and by virtue of the laws of the State of .... and having heretofore had the time of its adjudication in bankruptcy, its principal place of business at the City of ..... State of Second. Plaintiff further shows and alleges, that on the day of ... 19..., a petition of creditors of said ... Company was duly filed in the United States District Court for the district of praying that the said com 19..., the said pany be adjudicated a bankrupt, and such proceedings were thereafter had that on the .. day of .. Company was duly adjudicated a bankrupt, and the proceeding was referred to .. district of meeting of creditors duly held before the said referee on the ..... day of ... 19..., the plaintiff was appointed trustee in bankruptcy of the said bankrupt and duly qualified, filed his bond in the penalty required and is still acting as such trustee. Third. Plaintiff further shows and alleges, that as such trustee he has collected and reduced to cash, all of the property, assets and effects of the said bankrupt, other than the unpaid stock subscriptions, and that said moneys which have come into his hands as trustee and belong to the estate in bankruptcy, are insufficient to pay the expenses of administration and that no part of same are applicable for the payment of the debts of said bankrupt, or any dividend to creditors of said bankrupt, and that no dividend has heretofore been paid. Fourth. The plaintiff further shows and alleges, that there have been filed in the office of the referee in bankruptcy herein, during the year provided and allowed by the Bankruptcy Act, for the filing of claims, claims aggregating $..... which said claims have been proved and allowed, and that the time in which to file claims. in said bankruptcy proceeding has now expired. .... .... Fifth. On information and belief, plaintiff further shows and alleges, that prior to the organization of the Company, the bankrupt above named, there was a corporation organized and existing by and under the laws of the State of ..... known as the Company," of which corporation all of the defendants herein, with other persons, were directors and stockholders. A re-organization of said Company 66 having been deemed necessary, the defendants with other stockholders of said company, consented to a plan of re-organization, which provided for the payment of the debts of the said company and that all interested financially be given stock in a new corporation all on the same basis, and in order to prevent losses which would result through a liquidation of said .... Company, and to save the costs and expenses incident thereto, that the directors thereof resign and agree to accept stock in the new company to be formed. That all of the defendants herein signed and executed in writing such re-organization agreement and thereafter resigned as directors of the Company as provided by said plan. That pursuant to such re-organization, on or about the ....... day of ... 19..., the defendants and each of them, executed and delivered to the promoter thereof, a written agreement, a one copy of which is hereto annexed, marked Exhibit "A" and made a part of this complaint. Sixth. That on information and belief, thereafter and on or about the ...... day of ..... 19..., pursuant to said agree ment, Exhibit "A," the said Company, mentioned in said exhibit was duly organized and incorporated under the laws of the State of ..... dollars dollars ($........) ferred stock, and ... with an authorized capital stock of ($.........) consisting of that thereafter and prior to scription agreement (Exhibit accepted by said per cent., (....%) cumulative predollars ($........) common stock; 19..., said stock sub"A") was duly delivered to and Company and the stock allotted to the said several subscribers as provided by the terms of said agreement Exhibit "A," and the defendants were so notified. Seventh. On information and belief, the plaintiff further alleges that in reliance upon said subscription agreement and the capital thereby provided and assured, the .... Company, the bankrupt herein, began active operations in the business of the manufacture and sale of ... and incurred debts and liabilities, which are still unpaid. Eighth. That, as plaintiff is informed and verily believes, the defendants, though frequently requested so to do, have failed and refused to pay to said corporation the amounts of their several stock subscriptions, except, as plaintiff is informed and verily believes, the defendant has paid thereon the sum of $.. the defendant the sum of $..... and have received stock therefor. That the time provided in said stock subscription agreement since notice of allotment and call has long since expired. That the amounts remaining unpaid upon subscriptions to the stock of the Company, bankrupt, are as follows: Ninth. That, upon information and belief, the said Company was at all the times aforesaid, ready, willing and able to deliver to each of the defendants upon payment therefor, the balance of said stock subscribed for, and so notified each of said defendants. Tenth. The plaintiff further alleges and shows, that upon the ........ District of petition of plaintiff, duly verified, the United States District Court for the made an order, dated the .. day of .., 19..., ordering and directing that an assessment be levied upon the subscribers to the capital stock of said bankrupt company for the purpose of paying the debts of said bankrupt, as proved and allowed in said bankruptcy proceeding to an amount equal to the unpaid amounts upon the several stock subscriptions and directing the trustee to make a call for same and requiring payment thereof on or before ... 19..., a copy of which order is hereto annexed, marked Exhibit "B." That pursuant to said order, the plaintiff made and issued such call to each subscriber to the capital stock of said bankrupt upon whose subscription there remained a balance unpaid, annexing therewith a copy of said order of ... 19..., above mentioned. That said call was duly so made upon each of the defendants herein. That all and each of said defendants have neglected and refused to obey said order and have paid no part of the assessment ordered and directed by said bankruptcy court, and the time to comply with said order has now expired. Eleventh. That the plaintiff has no adequate remedy at law. First. That it be ordered, adjudged and decreed that the defendants, and each of them, pay to the plaintiff such several amounts. upon their unpaid subscriptions to the capital stock of the .... Company, bankrupt, as may be sufficient in the aggregate to pay the debts of said company, amounting to $.......... .. and the costs and expenses of this action. Second. That the plaintiff have judgment against the defendants, and each of them, for such unpaid stock subscriptions or for such part thereof as may be sufficient to pay the said debts of the ... action. Company, bankrupt, and the costs and expenses of this Third. That the plaintiff have such other and further relief in the premises as to this court may seem just and proper. [Verification.] Attorney for Plaintiff. (Address.) [Add Exhibits.] Action to recover unpaid subscriptions to stock. See § 70, ante. In re Miller Electrical Maintenance Co., 6 Am. B. R. 701, 111 Fed. 515. In re Eureka Furniture Co. (D. C., Pa.), 22 Am. B. R. 395, 170 Fed. 485. In re New Foundland Syndicate (C. C. A., 3rd Cir.), 29 Am. B. R. 858, 201 Fed. 917, 120 C. C. A. 255, modf'g, s. c. 28 Am. B. R. 19, 196 Fed. 443 Assessment denied. In re Monarch Corporation, 28 Am. B. R. 382, 203 Fed. 664, 122 C. C. A. 60. See also, s. c. 24 Am. B. R. 428, 196 Fed. 252. Preliminary assessment necessary. Rosoff v. Gilbert Transportation Co., 30 Am. B. R. 359, 204 Fed. 349. Hunt v. Sharkey (Cal. Ct. of App.), 31 Am. B. R. 894. Petition for call.-See § 70, ante. In re Remington Auto & Motor Co. (C. C. A., 2d Cir.), 18 Am. B. R. 389, 153 Fed. 345, 82 C. C. A. 421, aff'g, s. c., 15 Am. B. R. 214, 139 Fed. 766. In re Munger Vehicle Tire Co., 21 Am. B. R. 395, 168 Fed. 910, 94 C. C. A. 314. Clevenger v. Moore (Sup. Ct. N. J.), 12 Am. B. R. 738. In re A. Goodman Shoe Co., 3 Am. B. R. 200, 96 Fed. 949. See, Firestone Tire & Rubber Co., etc. v. Agnew (N. Y. Ct. of App.), 21 Am. B. R. 292, 194 N. Y. 165. Effect of order for assessment. In re M. Stipp Construction Co. (C. C. A., 3rd Cir.), 34 Am. B. R. 333, 221 Fed. 372, 137 C. C. A. 180. Right of trustee to bring action. In re Remington Automobile and Motor Co. (D. C., N. Y.), 9 Am. B. R. 533, 119 Fed. 441. Allen v. Grant, Trustee (Ga. Sup. Ct.), 14 Am. B. R. 349. Thrall v. Union Maid Tobacco Co. (O. Com. Pl.), 22 Am. B. R. 287. Skillin v. Magnus (D. C., N. Y.), 19 Am. B. R. 397, 162 Fed. 689. Where corporation has no right to enforce, trustee has none. Sternbergh v. Duryea Power Co. (C. C. A., 3rd Cir.), 20 Am. B. R. 625, 161 Fed. 540, 88 C. C. A. 482. When plenary proceedings are necessary, Bankruptcy Court may leave the question of amount due by stockholders to court in which suit is brought. Babbitt v. Read (C. C., N. Y.), 23 Am. B. R. 254, 173 Fed. 712. Suit must be of a plenary character. Kiskadden v. Steinle (C. C. A., 6th Cir.), 29 Am. B. R. 346, 203 Fed. 375, 121 C. C. A. 559. Liability of stockholders. Babbitt v. Read (D. C., N. Y.), 215 Fed. 395. Suit not maintainable by trustee under Minnesota statute. Courtney v. Georger (D. C., N. Y.), 34 Am. B. R. 517, 221 Fed. 502, aff'd, 35 Am. B. R. 20, 228 Fed. 859. Subscription agreement limits liability. Southworth v. Morgan, 205 N. Y. 293. A trustee in bankruptcy cannot maintain an action under N. Y. Stock Corporation Law against stockholders for a balance of the par value of stock issued as full paid for property purchased, but not so in fact. In re The Jassoy Company (C. C. A., 2d Cir.), 23 Am. B. R. 622, 178 Fed. 515, 101 C. C A. 641, dist'g In re Remington Automobile Co., 18 Am. B. R. 389, 153 Fed. 345. Action to enforce a statutory liability of stockholders to creditors imposed by § 56 (N. Y. Cons. Laws 1909, Ch. 59). May not be maintained by a trustee in bankruptcy. Breck v. Brewster (N. Y. App. Div.), 31 Am. B. R. 842, 153 App. Div. (N. Y.) 800, 138 N. Y. Supp. 821. |