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Sunrise Dairies v. Pierre''s Steak House & Restaurant Inc.

Decided: June 28, 1963.

SUNRISE DAIRIES, A NEW JERSEY CORPORATION, PLAINTIFF,
v.
PIERRE'S STEAK HOUSE & RESTAURANT, INC., A NEW JERSEY CORPORATION AND PETER A. PARLEGRECO, DEFENDANTS AND THIRD PARTY PLAINTIFF V. RAYMOND GOGLIA, THIRD-PARTY DEFENDANT



Feller, J.s.c.

Feller

This is a contract action against a corporate defendant and a statutory action against one of its former officers. A third-party complaint has been filed by the former officer against the former corporate president.

The complaint, which is in two counts, first seeks recovery of $2,100 from Pierre's Steak House and Restaurant, Inc. as being the balance due on a series of promissory notes. No answer was filed by this defendant and a default judgment has been obtained against this defendant. A former county district court judgment for $996 has also been docketed in the Superior Court against Pierre's Steak House and Restaurant, Inc., which judgment arose out of the same promissory notes but was only for a portion thereof.

The second count of the complaint charges that the defendant Peter A. Parlegreco, as secretary of the defendant corporation, is personally liable for its debts since he failed to file the certificate requested of him pursuant to N.J.S.A. 14:8-16 which is as follows:

"Upon payment of each installment of capital stock, and of every increase thereof, the president or a vice-president and the secretary or treasurer shall make a certificate stating the amount of the capital so paid and whether paid in cash or by the purchase of property.

This certificate shall be signed and sworn to by the president or such vice-president and the secretary or treasurer, and shall be filed in the office of the Secretary of State, within 10 days after such payment.

If any of such officers neglect or refuse so to do for 30 days after written request so to do by a creditor or stockholder of the corporation, they shall be jointly and severally liable for all its debts contracted before the filing of such certificate. (Emphasis added)

In answer to this count defendant Parlegreco denies that he was secretary of the corporate defendant when the request was made. It is further asserted that the request is defective since it named only one officer and not two as contemplated by the statute. It is also asserted as defenses that the corporation was bankrupt when the demand was made and its officers were restrained from exercising any of its privileges. The personal bankruptcy of Parlegreco is also urged as a defense.

Subsequently, in October 1962, defendant Parlegreco moved for summary judgment, or in the alternative, a dismissal of the complaint for failure to join the corporate president, Raymond Goglia, who was assertedly an indispensable party. Briefs were filed along with affidavits and, after argument, the motion, under both alternatives, was denied. Permission to file a third-party summons and complaint was granted, however.

Although the issues raised on the motion for summary judgment included the sufficiency of the demand made pursuant to the statute, it was not then decided that the statutory notice, served only upon one alleged officer, was valid. The status of the case not being actually ready for full presentation, the motion was denied and no issue of res judicata is now present.

On November 28, 1962 the defendant filed a third-party complaint against Goglia, the former president of defendant corporation. Relief by way of indemnification was sought on the basis that Goglia was the sole stockholder of the defendant corporation when the notice was ...


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