ERROR TO THE UNITED STATES CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT
Fuller, Harlan, Brewer, Brown, White, Peckham, McKenna, Holmes, Day
MR. JUSTICE PECKHAM, after making the above statement of facts, delivered the opinion of the court.
The only question which the plaintiff in error presents is
whether or not this action was barred by the New York three years' statute of limitations, and that depends upon whether section 382 or section 394 of the Code of Civil Procedure of that State is applicable.
Section 382 provides that actions of the following nature shall be barred within six years:
"1. An action upon a contract obligation or liability, express or implied; except a judgment or sealed instrument.
"2. An action to recover upon a liability created by statute; except a penalty or forfeiture."
Section 394, which the courts below have made applicable to plaintiff's cause of action, reads as follows:
"SEC. 394. This chapter does not affect an action against a director or stockholder of a moneyed corporation, or banking association, to recover a penalty or forfeiture imposed, or to enforce a liability created by the common law or by statute; but such an action must be brought within three years after the cause of action has accrued."
Several objections are made by the plaintiff in error to the application of section 394 to this case. They are (1) that the section does not apply to a director or stockholder of a foreign corporation; (2) that if it be held that it does extend to actions against directors and stockholders of foreign corporations of the class designated in the section, yet it does not apply to this case, because the trust company is neither a moneyed corporation nor a banking association; (3) that the stockholders' liability in this case is one based upon contract, and is not created either by the common law or by statute.
Taking up these objections in their order, we are brought to a consideration of the which asserts that section 394 does not apply to directors or stockholders of foreign corporations. We think it does.
A history of the legislation upon this subject in the State of New York, which finally resulted in section 394 of the Civil Code, is given in the opinion in Hobbs v. National Bank of Commerce, ...