Platt v. Hungerford

COXE, Circuit Judge

(after stating the facts). The statute of limitations applicable is section 394 of the New York Code, which provides that actions of this character “must be brought within three years after the cause of action has accrued.” Bank v. Pratt (C. C.) 103 Fed. 62 , affirmed Id., 49 C. C. A. 662 , 111 Fed. 842 . The Seattle Case, like the case at bar, was against a stockholder of the Western Farm Mortgage Trust Company, and, being the latest case considered by the circuit court of appeals, must be regarded as establishing the law in this circuit. The following propositions were there decided.

First: That the construction placed upon the statutes of Kansas by the supreme court of that state should be followed by this court.

Second: That section 44 of the Kansas statute (Gen. St. 1889 c. 23) gives a remedy to creditors to pursue stockholders immediately upon the dissolution of a corporation without waiting for the recovery of a judgment against the corporation.

Third: That the statute of limitations starts to run at the date of dissolution.

Fourth: That the remedy under section 32 of the same Kansas statute, which is the remedy invoked in the case at bar, cannot operate to extend the period of limitation, the right of action being complete the moment the corporation is dissolved.

Fifth: That under paragraph 1200 of the General Statutes of Kansas the corporation shall be deemed dissolved if it has suspended business for more than one year, a formal judgment of dissolution being unnecessary.

Sixth: That the Western Farm Mortgage Trust Company was dissolved a year from the date of the appointment of a receiver of its property and that the statute of limitations began to run March 6, 1893.

Applying this law to the facts at bar, it seems plain that were the original stockholder alive March 7, 1896, the cause of action against him would be outlawed. Richard E. Hungerford died January 5, 1896, before the statute had run, and it is argued for the plaintiff that section 403 of the New York Code is, therefore, applicable. This section provides that “the term of eighteen months after the death, within this state, of a person against whom a cause of action exists * * * is not a part of the time limited for the commencement of an action against his executor, or administrator.”

Assuming that this section adds eighteen months to the three years statute, making four and a half years in all, the cause of action would *773 outlaw September 7, 1897. As this action was commenced September 29, 1898, it is manifest that it was begun too late under the law as enunciated in the Seattle and Pratt Case. The court is unable to distinguish this case from the case at bar, the facts, in legal effect, being identical.

It is unnecessary to consider the other defenses. The complaint is dismissed, with costs.