Cameron v. Seaman

None of the positions assumed by the counsel for the plaintiffs are tenable. It is not necessary to the determination of this case to decide whether the act of 1848 (chap. 40, § 12,) requires the annual report to be published and filed, as well as made, within twenty days from the first day of January, inasmuch as there was a failnre to comply with the requirement in respect to publication at any time. Such failure devolved the same liability upon the defendants as a failure to make the report or to file it would have done. But we think the intention of the legislature was to make it the duty of the trustees to cause all those acts to be done within the twenty days. It is only by such an interpretation that the *606object of the statute, namely, to convey information of the affairs of the corporation, in the mode prescribed, can be accomplished. The making of the report alone certainly would give no knowledge of its contents to persons not privy to the making of it. Hence, it must be filed, in order that persons interested may have access to it, and the object of the publication is to facilitate the same purpose. The language of the statute, too, is not ambiguous. It imposes the duty of making, publishing and filing the report, and the liability declared is for a failure so to do. Clearly, therefore, the making of the report only would not save the liability. It must be published and filed also, and that must be done within the time limited for the making of it, for as the liability attaches upon the failure to do all those acts, the only reasonable inference is, that the limitation of time applies to all. Although the statute is a penal one, and will not be extended in its operation by construction, yet the same rules of interpretation apply to it as to statutes not penal. The.legislative will governs in all cases.

The extent of the liability is, “for all debts then existing, and for all that shall be contracted before such report shall be made,” and it falls upon those in office when the default occurred. It matters not that the debts were contracted before the officers became trustees, if they existed when the default occurred. (Boughton v. Otis, 21 N. Y., 261; Shaler, etc., Co. v. Bliss, 27 id., 297.) Nor is the liability of the trustees affected by the recovery of a judgment against the corporation, or by extending the time for the payment of the debt without their consent.

They are not parties to the contract between the corporation and the plaintiffs, nor does their liability depend on their membership in the corporation. It is imposed by the statute as a penalty for the non-performance of a duty thereby enjoined on them, the extent of the penalty being fixed by the amount of the corporate debts at the time the default occurred, and before the duty shall have been performed. The equitable principles growing out of the relations which parties to a contract sustain among themselves, therefore, have no application to such a case. (Corning v. McCullough, 1 Comst., 47; Moss v. Averill, 10 N. Y., 450; Harger v. McCullough, 2 Den., 119; Bank v. Ibbotson, 24 Wend., 473.)

The election held in September, 1874, at which the defendant *607Henry A. Seaman was chosen a trustee, appears to have been regular in all respects. No election having taken place in June, 1874, it was properly held at the next regular meeting, which occurred on the second Friday in September following; and the board of trustees had power to fix Newburgh as the place of meeting for that purpose. Mr. Seaman testified that, on receiving notice of his election from Mr. Haines, the president of the company, he told him he could not serve. Haines testified that Seaman was a trustee in January, 1875, and the judge, at the trial, found that he was a trustee, and refused to find that he notified Haines that he would not serve. There appears to be no sufficient ground for reversing the decision of the judge upon this question of fact. It is, at least, doubtful whether there was an effectual refusal to t-erve, or resignation of the office of trustee. (Ang. & Ames on Corp., § 433.) But we need not pass on that question.

The judgment must be affirmed.

Judgment affirmed with costs.