The defendant subscribed for 102 shares of the stock of the All-Star Feature Corporation, paying $200 which the plaintiff alleges was paid to and accepted by the company as payment for two shares of stock. Thereafter the defendant received dividends on the 102 shares, and after holding this stock for seventeen months sold the same for a substantial price, thereby asserting ownership and receiving the profits. The action is by a trustee in bankruptcy to recover the $10,000 for the stock. Defendant demurs for insufficiency, relying, first, on the fact that ten per cent not having been paid on the subscription the subscription was void and he did not become a stockholder. (See Stock Corp. Law [Consol. Laws, chap. 59; Laws of 1909, chap. 61], § 53.) In my opinion he is estopped from asserting this claim, having accepted dividends on and sold the stock.
The defendant relies, secondly, on .the fact, that it does not affirmatively appear that the money is necessary to pay the creditors. The United States District Court had made an order authorizing the plaintiff to issue a call or demand.upon defendant for the amount due from him and authorizing the plaintiff to bring this action. The said court had jurisdiction of the subject-matter and the necessity of the call and the amount thereof was for it to determine. If the order was improvidently made recourse must be had to that court; it cannot be collaterally attacked in this action.
The order should be affirmed, with ten dollars costs and disbursements.
Clarke, P. J., McLaughlin, Dowling and Smith, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.