Fox v. McComb

O’Brien; J.,

(concurring.) The complaint alleges, the answer admits, and the evidence shows, that the subscription to the stock was fully paid. Thereafter McComb, claiming to be a creditor, and having certain collateral mortgages given him as security, brought suit to foreclose them, and it was therein determined that he was such creditor, and, pursuant to the judgment, he received the moneys now sought to be recovered. The Madrid Association was a party to such suit, contested the claim, and was beaten, and the judgment was enforced against property not then, though formerly, held by the association. These facts cannot be reconciled with a recovery in a cause of action based on the theory that such- money was illegally procured to be paid respondent, or for money had and received. We assume, however, that the theory of partnership liability by reason of defective corporation is the one relied upon. Considering the evidence, it is clear that the Central Park Company was at least a defacto corporation, and its validity as against all but the state was thus established. The fundamental principle upon which the whole of appellant’s structure is built being destroyed, and it appearing, as to him, that the Central Park Company was a valid corporation, the contracts being in the corporate name, the defendant McComb is protected from individual liability, and cannot be held as a partner. I therefore concur in the conclusion reached by the learned presiding judge.