Guggenheimer v. O'Keiffe

The cause of action in plaintiff’s favor survived. The alleged agreement (Ex. 2, p. 20) is not of itself a defense to the action. It is conditioned expressly upon the act of a third party, and nowhere appears that such condition has been complied with. It remains to be considered whether or not the making of a report by the trustees of a corporation, and the publication and filing of it in December, 1883, is a compliance with the statutory direction that these acts shall be performed within twenty days from the first day of January. This question may not be wholly free from doubt, but I feel constrained to hold that the law was not complied with. In Conger v. Seaman (69 N. Y.,. *296369), the court of appeals adjudged that the filing and publishing of the report need not be accomplished within the twenty days, but that these acts must be completed within a reasonable time thereafter. But this does not touch the main question involved in the case at bar—here no report was made during the year 1884—it is very clear that “ from ” means “running from,” that is, “after,” and this seems to be conceded by respondent. The statute fixes the time within which the report is to be made. The court has no lawful power to enlarge or vary it. The court must not attempt to bend the laws in order to relieve a case of individual hardship or to correct a mistake.

The judgment should be reversed and a new trial ordered, costs to appellant to abide event.

McAdam, 0. J., concurred.