cedure."


SEPARATE  ACTION  AGAINST  STOCKHOLDEKS.  437

holders,  who  he  claimed  had  in  their  possession  assets  belong-
ing to  the  corporation,  and  in  accordance  with  the  statute,
the  matter  was  sent  to  a  referee,  who  reported  that  said
stockholders  had  such  assets,  in  their  hands,  which,  so
far  as  was  necessary  to  pay  debts  and  expenses,  and  pro-
duce equality  of  final  distribution,  they  had  no  right  to  re-
tain ;  no  exceptions  were  filed  in  the  report ;  the  receiver,
instead  of  entering  final  judgment  thereon,  made  up  his
account  for  presentation  to  the  court,  and  filed  a  petition  in
this  action,  reporting  therein  the  precise  amount  necessary  to
be  restored  by  said  stockholders,  and  praying  that  said  stock-
holders be  adjudged  to  pay.  A  copy  of  the  petition,  with
notice  of  application  to  the  court  thereon,  was  served  on  said
stockholders  who  appeared  at  special  term,  and  also  before  a
referee  appointed  to  ascertain  the  facts,  and  litigated  the  cor-
rectness of  the  receiver's  accounts  and  the  amount  of  their
liability,  without  questioning  the  right  of  the  referee  to  deter-
mine the  amount  of  assets  they  should  restore.  On  the
coming  in  of  the  report  judgment  was  entered  therein  against
them  for  the  amount  so  ascertained,  and  the  court  held,  that
although  such  judgment  was  beyond  the  legitimate  and  regular
purposes  of  the  action,  yet  said  stockholders  might  have  been
brought  in  by  a  supplemental  complaint  and  by  their  volun-
tary appearance  they  rendered  this  unnecessary  and  became
parties,  the  court  had  power  to  make  a  final  determination  of
the  question,  and  having  had  full  opportunity  to  be  heard,
they  could  not  now  complain.
