#### William A. Copp, Respondent, *v.*The Colorado Coal and Iron Co., Appellant.

(City Court of New York, General Term,

July, 1900.)

1. Statute — Dissolution and consolidation distinguished.

A statute of a foreign State, declaring that the dissolution of a corporation shall not take away or impair any remedy given against such corporation for liabilities incurred before its dissolution, does not apply to the case of a creditor who rendered services to a corporation of said State, which was not dissolved, but was consolidated with another corporation of said State.

*2.*Same—Remedy against a constituent company lost by consolidation.

Although the statute of the foreign State provides that the consolidated company shall be responsible for the just liabilities of eacof the companies consolidated, and declares that consolidation shall not affect suits pending against the companies consolidated, a suit of a creditor, not pending at the time of the consolidation, against a company consolidated is not saved by the statute, and the remedy of the creditor, if any, is against the consolidated company alone.

Appeal from a judgment of the City Court of the city of New York, entered upon a verdict in favor of the plaintiff, and from an order denying a motion for a new trial. The action was brought to recover for legal services alleged to have been rendered to the defendant, a Colorado corporation. The principal defenses were that, before the action was brought, the defendant had been consolidated, in Colorado, with the Colorado Duel Company, that thereby the defendant was dissolved and that a new successor corporation was thereupon created, in Colorado, under the name of *242The Colorado Fuel & Iron Company. It was further alleged that the defendant discharged the plaintiff immediately before the consolidation. Upon the first trial of the action the plaintiff succeeded, but was subsequently defeated at the Appellate Term. See 29 Misc. Rep. 109.

James Stikeman, for appellant.

John O’Connell, for respondent.

Hascall, J.

It seems that the defendant company was not dissolved, but was consolidated and merged with another company. "We must hold, therefore, that the statute of Colorado (Gen. St. of 1883, § 270), providing “ that the dissolution * * * of corporations * * * shall not take away or impair any remedy given against such corporations * * * for any liabilities incurred previous to its dissolution,” does not apply to the case at bar. But section 349, of the said statutes of 1883, expressly provides that “the consolidated company shall be responsible for and shall assume and pay all the just liabilities of each of the companies so consolidated,” etc., while section 351 thereof declares that “ Such * * * consolidation * * * shall not affect *suits pending*in which such corporation or corporations shall be parties * * * nor shall suits brought against such corporation by its former name be abated.” Thus it would appear that the right of action, if any exists in favor of the respondent, has, by the statutory provision above cited, become a liability of The Colorado Fuel *&*Iron Company and no longer exists against the appellant herein.

It appears that the action was brought some considerable time after the defendant had been merged and consolidated, and it was, therefore, not a “ suit pending ” at the time of merger; and, while the cause of action may not have abated or been lost against the. new corporation, under section 349 above quoted, yet we conclude that it did not exist against this defendant when the plaintiff brought his suit.

Judgment and order appealed from reversed, with costs of appeal and complaint dismissed, with costs of action to appellant.

Conlan, J., concurs.

Judgment and order reversed, with costs, and complaint dismissed, with costs to appellant.