Nicholson v. Sprague

By the allegations of the complaint it appears that the defendants took over the assets of the corporation and assumed its liabilities. That of course included only liabilities existing at the time of the transfer and assumption thereof. There is no allegation in this complaint that at that time any liability existed in favor of the plaintiffs against the corporation, as it is only alleged that prior to the commencement of the action the defendants assumed any liability. To sustain a cause of action in favor of the plaintiffs it must appear that at the time of the assumption of the liabilities, such liabilities existed in favor of the plaintiffs against the corporation.

For this reason, the determination appealed from is affirmed, with $10 costs and disbursements; the plaintiffs to have leave to amend within 10 days on payment of costs in this court and in the court below. Order filed.