Opinion
December 26, 1934.
Appeal from the City Court of New York, County of Bronx.
Root, Clark, Buckner Ballantine [ Hugh B. Cox of counsel], for the appellant.
John H. Gamaldi, for the respondent.
Plaintiff in the bankruptcy proceeding exhausted his remedies to the portion of his compensation allowed as a general claim, and as to such portion action against the bankrupt corporation was barred and it was impossible to perform the condition precedent of section 73 of the Stock Corporation Law, of proceeding to judgment and execution before bringing action against the stockholder. As the facts alleged are sufficient to sustain part of the damages claimed, defendant was not entitled to a dismissal of the complaint.
Order reversed, with ten dollars costs and disbursements, and motion denied.
All concur; present, LYDON, HAMMER and FRANKENTHALER, JJ.