(concurring):
I concur with Mr. Justice Laughlin in the conclusion that to enforce section 56 of the Stock Corporation Law (Consol. Laws, chap. 59; Laws of 1909, chap. 61), which, re-enacted section 54 of the former Stock Corporation Law (Gen. Laws, chap. 36; Laws of 1892, chap. 688), as amended by chapter 354 of the Laws of 1901, the action must be in equity, brought on behalf . of all the creditors of the corporation against all the stockholders whose capital stock has not been fully paid in, who are solvent, and who are within the jurisdiction of the court. I assume it would not be essential to make a defendant the owner of stock the -subscription for which, had not been fully paid, if such a holder was insolvent, had become a bankrupt, or was not within the jurisdiction of the court. Under this provision of the statute it would seem that, the unpaid subscriptions to stock are constituted a fund for the benefit of creditors of the corporation, and that upon the corporation becoming insolvent by a proper action this fund could be so realized as to be distributed among the creditors of the corporation. But it would seem that the stockholders and subscribers to the stock would only be liable to an amount sufficient to pay the debts of the corporation and thus all the creditors would have to be before the court and also all the stockholders so that a liability could be imposed which would be sufficient to pay the corporate debts.
I also think that the evidence'fails to Show that there is any subscription for capital stock made by these defendants unpaid. The court has found that the defendants subscribed for certain shares of the capital stock of the corporation and paid into the treasury thereof the par value of such-stock and except as found none of the defendants at any time were either the holders of any part of the capital stock of said defendant company' nor were any of said defendants subscribers to any of the capital stock of the said defendant company, which was unpaid. I think that finding is sustained by the evidence, and for that, reason the court correctly dismissed the complaint.
I concur, therefore, in the affirmance of this judgment.'
Miller, J., concurred.
Judgment affirmed, with costs'..