The opinion
By the Court, Marvin, J.
In view of all the cases, I think we must regard the defendant as a stockholder, and as liable to the bank for such stock, at any time prior to the transfer made by him to Brown. (See Dayton, receiver, v. Borst, 31 N. Y. Rep. 435 ; Lake Ontario, &c. Railroad Co. v. Mason, 16 id. 451 ; The Rensselaer and Washington Plank Road Co. v. Barton, Id. 457 , note; Burrows, receiver, v. Smith, 10 id. 550 .)
The court, in the present case, assumed such liabibility, and put its decision upon other grounds.
The receiver, as to the right to maintain this action, occupies the position of the bank, and in the absence of fraud, touching the transfer, his right of action can be no better than the right of the bank was, after the transfer. *172 Could the hank have maintained an action against the defendant for the stock, after it was transferred to Brown, and especially after Brown had become the owner and holder of all the stock ?
By the act of 1838, chapter 260, to authorize the business of banking, section 19, the shares of the association are to be deemed personal property, and are transferable on the books of the association in such manner as may be agreed on in the articles of association; and every person becoming a shareholder by such transfer shall, in proportion to his shares, succeed to all the rights and liabilities of prior shareholders. This is clear. The shares are personal property, transferable, and the transferree succeeds to all the rights and liabilities of the transferrer.
The right to transfer the shares is unconditional, except as it may be limited by the articles of association. (Bank of Attica v. Manufacturers' and Traders’ Bank, 20 N. Y. Rep. 501 .) In the present case there was no limitation by the articles of association. I do not see that the act of 1849, chapter 226, to enforce the liability of stockholders, &c. has any application to this case. All the debts and liabilities of the bank existing at the time the defendant transferred his stock to Brown, had been paid and discharged, before any receiver was appointed. In Cowles v. Cromwell, ( 25 Barb. 413 ,) it was decided that upon a transfer of the stock in good faith, with the assent of the bank, by one who has agreed to take stock, but has not paid for it, to another person, such other person is substituted in the place of the original stockholder in regard to the liability to pay for the stock, and the latter is exonerated from payment. This is going further than it is necessary to go, in the present case, as in this case no debt existing at the time of the transfer, existed at the time a receiver was appointed. Ho question of fraud, touching the transfer of the stock, is made in this case. Brown was supposed, at the time, to be a man of wealth and responsibility. *173 In my opinion this case was properly decided, by the court.
[Erie General Term,
September 7, 1868.
It is not necessary to express any opinion as to the action being barred by the statute of limitations.
The judgment must be affirmed, with costs.
Daniels, Marvin, Davis and Barker, Justices.]