I concur with Mr. Justice Miller in the disposition that is made of this appeal. I wish to add, however, that as the liability created by section 303 of the Banking Law (Consol. Laws, chap. 2; Laws of 1909, chap. 10) was joint and several and was to the creditor and not to the corporation, the creditor could sue one or more of the stockholders to enforce the liability. He. made certain stockholders parties defendants, who were not served with the summons in the action, and there is one stockholder who was served with the summons but who died before judgment, and the action abated as to him and was not revived because there were no personal representatives appointed in this State., The fact that these stockholders were not served *129could not prevent the plaintiff from proceeding against others who were served, and, on the objection being raised, the court below should have entered an order discontinuing the action against those who had not been served and were not before the court. The action could then have proceeded against those who had been properly served and were before the court. I think on this appeal such an order should be entered so as to prevent any question as to the effect of the judgment upon those who were not actual parties to the controversy. I have some doubt as to whether section 59 of the Stock Corporation Law (Consol. Laws, chap. 59; Laws of 1909, chap. 61), to which Mr. Justice Miller refers, applies to an action to enforce this personal liability in favor of a creditor, but I do not think that question is presented, as it does not appear that any creditors who were defendants asked for any relief as against their codefendants and served their answers on the codefendants against whom relief was asked as required by the Code of Civil Procedure (§ 521).
In all other respects I concur with Mr. Justice Miller.
Judgment modified as directed in opinion, and as modified affirmed. Order to be settled on notice.