The question presented upon this appeal cannot in principle be distinguished, as it seems to me, from the principle involved in the decision in Marshall v. Sherman (148 N. Y. 9), and, therefore until the Court of Appeals overrules that decision it is binding upon this court.
In Mowarth v. Angle (162 N. Y. 179) the court did not overrule Marshall v. Sherman (supra), but simply pointed out the difference between the two cases. In the Marshall case the action was brought, as here, by a single creditor,, and in the Howarth case by the receiver representing and for the benefit of all the creditors.
When a corporation has become insolvent and a receiver has been appointed, it would seem that its assets ought to be marshalled and its liabilities ascertained, to the end that all creditors might be treated alike. It is a harsh rule which permits a single creditor who happens to know of a solvent stockholder in another State to commence an action in his own behalf against him to the end that he may get liis pay, to the exclusion of all others. This, in Marshall v. Sherman (supra), the Court of Appeals held could not be done, and until that court changes its view on the subject, I do not see how an action of this character can be maintained.
I, therefore, vote to reverse the judgment and sustain the demurrer.
Houghton,' J., concurred.
Judgment affirmed, with costs, with leave to defendant to withdraw demurrer and to answer on payment' of costs in this court and in the court below.