Dispensers Inc. v. Resnick , 3 A.D.2d 862 ( 1957 )

In an action by a judgment creditor against the officers and certain unsecured creditors of a corporation, based on an alleged transfer of the assets of the corporation in violation of the provisions of section 15 of the Stock Corporation Law, the appeal is from (1) so much of an order, on reargument, dated December 5, 1956, as dismissed the complaint against respondent on the ground that it does not state facts sufficient to constitute a cause of action, and as vacated a notice to examine respondent before trial; and (2) an order dated December 21, 1956 denying a motion for leave to serve an amended complaint. Order dated December 5, 1956, insofar as appealed from, reversed, with $10 costs and disbursements, motion to dismiss the complaint denied, and motion to vacate the notice of examination before trial remitted to the Special Term for determination on the merits. It is our view that the complaint sufficiently alleges that respondent received moneys of the corporation in payment of an unsecured claim, with knowledge of the corporation’s insolvency and with an intent to gain a preference. If such circumstances are proved, he may be liable to appellant under section 15 of the Stock Corporation Law. Appeal from order dated December 21, 1956 dismissed, without costs, as academic. Wenzel, Acting P. J., Beldock, Murphy, Ughetta and Kleinfeld, JJ., concur.