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of any evidence of an attempt to deceive or to evade the statute, a liberal interpretation, and the benefit of any doubt as to its true intent and meaning will be given to the trustees sought to be charged. Whitney Arms Co. v. Barlow, 63 N. Y., 62.
A report, signed by a majority of the actual trustees of a corporation, is a sufficient compliance with the requirement of this section. Wallace & Son v. Walsh,
52 Hun, 328.
Vacancies may be brought about by resignations, and the number of trustees in this manner reduced. Wallace & Son v. Walsh, 52 Hun, 328. The stockholders may accept the situation and subsequently elect a less number. Id. The number prescribed in the original certificate may be thus abandoned and legally reduced. Id.; S. C., 125 N. Y., 26.
To meet the requirements of this section it is not necessary that the annual report shall be filed within twenty days from the first of January. Cameron v. Seaman, 69 N. Y., 396. It is sufficient, when the report is prepared, signed and verified within such time, and filed as soon as practicable thereafter. Id.
The provisions of this section, as to time of making and filing the report, is not complied with by doing so within twenty days before the first of January, though it is regular in other respects. Cincinnati C. Co. v. O'Keefe, 120 N. Y., 603. The report must be made between the first and twentieth days of January inclusive in each year. Id.
Good faith on the part of the directors in making and filing the report prematurely is no defense to the liability imposed upon them for non-compliance with this provision. Cincinnati C. Co. v. O'Keefe, 120 N. Y., 603.
The limitation of twenty days applies only to the act of making, and not to the act of filing the report. Butler v. Smalley, 101 N. Y., 71. As to the latter act, the section is directory. Id. The law, in the absense of an express provision on the subject, implies that the filing shall be within a reasonable time after the twenty days. Id. This requirement exacts prompt performance and diligent action on the part of the trustees. Id. This rule leads to an inquiry in any given case, whether the party on whom the duty is imposed is shown to be in default. Id.; Cameron v. Seaman, 69 N. Y., 396. In the absence of want of good faith and active diligence, a trustee will not be subjected to a penalty, provided the thing required is actually done at a reasonable time, having regard to the nature and circumstances of the performance. Butler v. Smalley, 101 N. Y., 71.
Under the former statute, the report had to be both filed and published; Gildersleeve v. Dixon, 6 Daly, 76; but filing alone is sufficient under this section.
A failure to file the report within a reasonable time after the twenty days allowed by this section for making it, is of itself a sufficient violation of the act to subject the trustees to the penalty. Butler v. Smalley, 49 Supr., 492. Where there is no obstacle or excuse offered for the delay in such case, the trustees are liable without regard to the question of their good faith. Id.
The requirement of this section is not satisfied by a filing in the month of December previous, although done within twenty days before the first of January. Cincinnati Cooperage Co. v. O'Keefe, 44 Hun, 64.
Where the acting board of trustees have filed a duly signed and certified annual report within the prescribed time, it is a compliance with the letter and spirit of the law. Wallace v. Walsh, 125 N. Y., 26. In such case, it is not competent for a creditor to show that some of the acting trustees were not duly elected or for some reason were disqualified from acting, or to claim that, by reason of a nonperformance or an irregularity in the performance of some prior duty enjoined upon the stockholders, said board had no authority to perform the general duties required of them as agents of the corporation. Id.
A report made by a corporation under this section, if signed by seven trustees, is in this respect a valid report. Cornell v. Roach, 101 N. Y., 373; section 2, chap. 567 of 1890.
An annual report. signed by two trustees, where the certificate of incorporation was signed by seven and acknowledged by nine trustees, does not satisfy the provisions of this section, unless it is shown by an official record that the number of trustees has been sufficiently reduced by resignation or otherwise. Radde, 67 How., 204.
Where there are five trustees of a corporation, of which the president is one, a report, signed by the president and two trustees, complies with the statute. Glen's F. P. Co. v. White, 18 Hun, 214.
A statement in the report that the amount of its existing debts does not exceed $75,39, is sufficiently specific. Glen's F. P. Co. v. White, 18 Hun, 214.
A verification of the report by the president to the effect that it is, in all respects, true to the best of his knowledge and belief, is sufficient. Glen's F. P. Co v. White, 18 Hun, 214.
The verification to a report in the following language: "Sworn to before me this 13th day of January, 1870, Charles W. Anderson, Notary Public, New York County," was held sufficient, where the report was signed by the president of the corporation and actually verified by him before a proper officer. Bonnell v. Griswold, 80 N. Y., 128.
It is not necessary, under this section, to specify in the report how much of the capital stock was paid in cash and what amount in property. Whitaker v. Masterton, 106 N. Y., 277.
A statement, from which it can not be determined what proportion of the capital stock has been paid in in cash, and how much has been issued for property, is defective. Glen's F. P. Co. v. White, 18 Hun, 214. See Whitaker v. Masterton, 21 W. Dig., 209; Pier v. George, 17 Hun, 207.
The amount of cash paid in, and the amount of stock issued for personal property transferred to a corporation, need not, under this act, be separately specified in the annual report made and filed by the trustees. Whitaker v. Masterton, 106 N. Y., 277. Prior to the enactment of chap. 510 of 1875, the report was required to comply with both chap. 40 of 1848 and chap. 333 of 1853. Pier v. George, 17 Hun, 207; Blake v. Wheeler, 18 id., 496; aff'd 80 N. Y., 128.
Where the capital stock was all issued in payment for patent rights, a report, made and filed, stating that "the amount of the capital stock of the company, which has been issued for patent rights, and which has not been paid in cash, is $300,000," which is the amount of capital stock, is a sufficient compliance with this section to save the trustees from liability. Whitney Arms Co. v. Barlow, 63 N. Y., (2. A person, who becomes a trustee after twenty days from January first, is bound, if he desires to avoid personal liability, to publish the annual report. Chandler v. Hoag, 2 Hun, 613; aff'd 63 N. Y., 624.
This section makes no distinction as to the place where the debts shall have been contracted, nor does it distinguish between creditors residing in this or in other states. Sears v. Waters, 44 Hun, 101.
A judgment of record against a corporation is a "debt," for which the trustees are liable under this section. Lewis v. Armstrong, 8 Abb. N. C., 385.
Ag of bonds by the company, as a mere gratuity, does not constitute a debt against it in such a sense as to justify a recovery against the trustees under this section. Norris v. De Wolf, 12 Hun, 666; aff'd 76 N. Y., 597.
The provision of this section does not include an indebtedness imposed upon the corporation by fraud or improper practices of the creditor. Adams v. Mills, 60 N. Y., 533.
Bonds, issued by a manufacturing corporation, and to the knowledge of the holder diverted from the purpose for which they were intended and authorized, are not, in the hands of such holder, a debt against the company, within the meaning of this section. Kirkland v. Kelle, 99 N. Y., 390.
Under the statute of 1848, it was held that certain kinds of liability, which must ultimately ripen into "debts," are not "debts" within its meaning. Cviatt v. Hughes, 41 Barb., 541; Whitney Arms Co. v. Barlow, 68 N. Y., 34; Victory W. P. Co. v. Beecher, 26 Hun, 48.
The "debts," for which the trustees are made liable by this section, do not include, it seems, unliquidated claims for breaches of contract and causes of action incidently arising or resulting therefrom, which the company might meet and dedefeat by some sufficient defense. Victory W. P. Co. v. Beecher, 26 Hun, 48.
This liability does not depend upon the fact that he was a trustee when the debt was incurred, but upon his having been a trustee when the default in filing the report occurred. Bruce v. Platt, 80 N. Y., 379.
This section does not render trustees liable for torts committed by the corporation. Esmond v. Bullard, 16 Hun, 65; aff'd 79 N. Y., 404.
A judgment against a creditor in favor of the corporation operates as an estoppel in an action upon the same claim against its trustees because of failure to file the annual report. Tyng v. Clarke, 9 Hun, 269.
A judgment for costs against a corporation, in an action for trespass commenced by it, is such a debt of the corporation that a trustee is liable therefor under this
section. Allen v. Clarke, 108 N. Y., 269; rev'g 43 Hun, 377. The trustee ma show that the recovery was either collusive or fraudulent. Id. Though such judgment may not be conclusive as against him, it is at least prima facie evidence of its existence. Id.
A judgment, which is in existence as a debt against the corporation at the time the default in filing the annual report happens, is a debt within the meaning of this section, for which the trustee in default is responsible. Lewis v. Armstrong, 8 Abb. N. C., 385.
Where the report remains unfiled after the contingent liability of the company has become an absolute indebtedness by reason of due notice of non-payment of the draft by the acceptors, this section imposes upon the trustees a liability therefor, which a holder can enforce by an action. National Bank v. Fenton, 23 Hun, 309.
It is essential to aver, in pleading under this section, that the debt, for which the trustee is sought to be made liable, was existing at the time the default was made, or that it was contracted afterwards and before the report was published. Chambers v. Lewis, 28 N. Y., 454.
Where there is no obligation giving a present right of action against the company, there is no debt which can be demanded as a penalty against the trustee. Rector, etc., Ch. v. Vanderbilt, 20 W. Dig., 488; Jones v. Barlow, 62 N. Y., 202; Whitney Arms Co. v. Same, 63 id., 62; 68 id., 34.
Act does not require debt to be due, but only to be existing at time of default in filing report. Carr v. Risher, 50 Hun, 147.
The liability of a person who was not a trustee at the time of the default, but became such afterwards, is limited to debts created while he remains trustee, and while the default continues. Shaler & H. Q. Co. v. Bliss, 27 N. Y., 297; Garrison v. Howe, 17 id., 458; Boughton v. Otis, 21 id., 261.
In such case, the debt must have been contracted during a default, or have existed at the time of a subsequent default. Garrison v Howe. 17 N. Y., 458.
This liability is subject to the same conditions and qualifications that attach to the original indebtedness. Jones v. Barlow, 62 N. Y., 202. Whatever will defeat or abate an action against the corporation will be a defense to the trustees. Id. They are only liable to an action for debts actually due, and for which a present right of action exists against the company. Id
Causes of action against a trustee, arising under this section for failure to file a report, and under section 31 of this act for filing a false report, may be properly united. Bonnell v. Wheeler, 1 Hun, 332; aff'd 68 N. Y., 294.
The burden of proof is upon the creditor to establish that the debt was contracted by the corporation. Dabney & Stevens, 40 Hun, 341.
They can not avail themselves of a defense not personal to them, but going to the foundation of the claim and cause of action against the corporation, which would not be available in its favor. Whitney Arms Co. v Barlow, 63 N. Y., 62.
A person, who is named as a trustee in the certificate, can legally act as trustee, though he does not, in fact, own any stock. McDowall v. Sheehan, 129 N. Y., 200; 41 N. Y. St. Rep. 415; Davidson v. Westchester G. L Co., 99 N. Y., 558.
A creditor, who has consented to non-filing of report, can not take advantage of such omission. Carraher v. Mulligan, 54 Hun, 638; 28 N. Y. St. Rep., 439.
A trustee can not, as creditor of the corporation, maintain an action against his co-trustees under this section. Easterly . Barber, 65 N. Y., 252. This rule ap plies also to one who has acted as trustee, though not legally elected. Id. He can not repudiate his character as trustee and recover from those with whom he has acted. Id.
Where a debt against a corporation, owned by a trustee, is assigned by him absolutely for value, the assignee, on a subsequent default of the company to make a report, may proceed under this section, though the assignor continues to be a trustee up to the time of such default. Cornell v. Roach, 101 N. Y., 373.
An action can not be maintained against a trustee under this section by the as signee of a demand, which, at the time of the failure to file the report, belonged to the president of the company. Bronson v. Dimock, 4 Hun, 614; Briggs Easterly, 62 Barb, 51.
Where the debt is assigned after a trustee has become personally liable under this section, the assignee may maintain an action to enforce such personal liability. Pier v. George, 14 Hun, 568; Bolen v. Crosby, 49 N. Y., 183.
The report is the act of the trustees, and the duty of making it is devolved upon
them. Bolen v. Crosby, 49 N. Y., 183. The secretary can not subscribe to it the names of the trustees, or verify it in any way to make it the act of the corpora tion and a compliance with the statute, so as to relieve the trustees from their duty, or the liability resulting from an omission to perform it. Id. He is not chargeable with the consequences of such an omission, nor precluded from maintaining an action to enforce the personal liability of the trustees under this section. Id. The liability under this section may be enforced by a creditor who is a stockholder, as well as by an outside creditor. Sanborn v. Lefferts, 58 N. Y., 179. A cause of action under this section is assignable. Bonnell v. Wheeler, 3 T. & C., 557; aff'd 68 N. Y., 294.
A cause of action against a trustee under this section is assignable, and may be enforced by the assignee of the creditor. Bonnell v. Wheeler, 1 Hun, 332; aff'd 68 N. Y., 294.
An assignee of a claim against the corporation may maintain an action against a trustee thereof, under this section. Pier v. George, 86 N. Y., 613.
The assignment of a judgment against a corporation, carries with it the claim or debt upon which it is founded, and all rights and remedies for the recovery and collection of such claim or debt, including the remedy given by this section against the trustees. Bolen v. Crosby, 49 N. Y., 183.
A creditor trustee can not alone, or in connection with his co-partners, nor can his assignee, maintain an action under this section. Knox v. Baldwin, 80 N. Y., 610; Briggs v. Easterly, 62 Barb., 51; Bronson e. Dimock, 614.
In case of an assignment of a corporate debt, a release of one of the trustees by the assignor, after the releasee has notice of the transfer, will not operate to defeat the claim of the assignee. Bolen v. Crosby, 49 N. Y., 183.
The right of a pledgee of corporate bonds, hypothecated to secure a loan, is not precisely the same as that of an owner, where the pledgor is also one of the trustees, and liable with the others for not making the report. Roach v. Duckworth, 95 N. Y., 391. He can enforce the bonds against the trustees only so far as is necessary to his indemnity. Id. To go beyond that point, would result in benefiting the pledgor trustee. Id.
Directors are not liable for failure to file annual report, where corporation ceases to exist before the debt becomes due. Gold v. Clyne, 58 Hun, 419. Debt can not be contracted until liability has been incurred. Id.
The omission to publish, in the first twenty days of January, the statement required by this section imposes a personal liability upon the trustees in office for all the corporate debts existing while they are in default. Boughton v. Otis, 21 N. Y., 261. But, in such case, they are not liable, it seems, for debts contracted after their retirement from office. İd. A trustee, coming into office after a default, is personally liable for such debts only as are contracted while he is in office, and before a report is made and published. Id.
Trustees, who have neglected to make their report, are not personally liable for debts contracted until after they have ceased to be trustees of the company. Shaler & H. Q. Co. v. Bliss, 34 Barb., 309; aff'd 27 N. Y., 297.
The fact that a stockholder has been elected a trustee does not alone invest him with that character so as to make him liable under this section. Cameron v. Seaman, 69 N. Y., 396. There must be an acceptance of the office on his part, either express or to be implied from the circumstances. Id.
Under this section it is not enough to show that a person was elected a trustee, but some direct and positive act by him, assenting to this act of the stockholders, must also be proved. Osborne & C. Co. v. Croome, 14 Hun, 164; aff'd 77 N. Y., 629; People v. Batchelor, 22 id., 125; Cameron v. Seaman, 69 id., 396.
Where a corporation has never, in fact, commenced business, and, before the time prescribed for making an annual report has elapsed, the object for which it was formed becomes impossible for it to accomplish, and there is neither ability nor intention on its part at any time to prosecute its business, it is not required to make such report, and its trustees are not liable to creditors, because of its failure so to do. Kirkland v. Kille, 99 N. Y., 390.
Trustees, who hold over and continue in office, are subject to all the liabilities imposed by law upon trustees regularly and annually chosen. Reed v. Keese, 60 N. Y., 616; Deming v. Puleston, 55 id., 655; Jan v. Lefferts, 16 Abb., N. S., 42. A trustee, who was not legally, but was in form, elected and acted as such, is liable for a failure to file a report from the time of his election to the time of his resignation. Halstead v. Dodge, 51 Supr., 169. The fact that he was not a stockholder is no defense. Id.; s. c., 1 How., U. S., 170.
A trustee may resign and relieve himself from liability thereafter incurred by it, though the resignation is not acted upon by the board of trustees or entered in the books of the corporation. Blake v. Wheeler, 18 Hun, 496; aff'd 80 N. Y., 128; Chandler v. Hoag, 2 Hun, 613; aff'd 63 N. Y., 624.
It is not necessary for trustees to resign at the end of the year, in order to produce a vacancy. Van Amburgh v. Baker, 81 N. Y., 46. A vacancy would come, in such case, from the termination of their terms of office. Id. Unless they continue to act, after such time, as trustees, they are not liable for not making and filing a report in the following January. Id.; Deming v. Puleston, 55 N. Y., 655; Reed v. Keese, 60 id., 616; 379 Super., 269; Vincent v. Sands, 33 id., 511; Sanborn v. Lefferts, 58 N. Y., 179,
A trustee may resign his trusteeship. Squires v. Brown, 22 How., 35. In case of his resignation, he does not become liable for the debts of the company on the subsequent default or neglect of the remaining trustees to make and file the annual report. Id.; Boughton v. Otis, 29 Barb., 196; aff'd 21 N. Y., 261; Shaler & H. Q. Co. v. Bliss, 10 Abb., 311; Young v. N. Y. & L. I. Co., id., 229; Garrison v. Howe, 17 N. Y., 458; Tracy v. Yates, 18 Barb., 152.
A trustee, who resigns after the incurring of the debt, but before the default, is not liable. Bruce v. Platt, 80 N. Y., 379. It is not necessary for him to give notice to the public, the creditors or any persons other than his associates, of his intention to resign, or of his resignation. Id.
A trustee has power to resign, and its acceptance and entry in the minutes of the corporation are not necessary to make the resignation complete. Chandler v. Hoag, 2 Hun, 613; aff'd 63 N. Y., 624.
After a corporation is adjudged a bankrupt and its entire property passes into the hands of an assignee in bankruptcy, no report is necessary. Bonnell v. Griswold, 80 N. Y., 128.
Where a company practically abandons its business, and all its business has been sold at sheriff's sale, the subsequent failure to make and file an annual report does not make the trustees individually liable to a creditor of the company. Wamsley v. Palmer, 5 N. Y. St. Rep., 307; even though the sheriff's deeds are defec tive, and do not de jure convey the title to the property out of the corporation. Id. The corporation, on the appointment of a receiver, is so far dissolved that thereafter the duty is no longer upon the trustees to make the annual report. Huguenot N. Bk. v. Studwell, 74 N. Y., 621. Where a receiver is appointed during and before the expiration of the twenty days in which the trustees are required to make such report, they are not liable to the penalty imposed by this section. Id. When a corporation, so far as the liability of trustees and stockholders is concerned, may be deemed to be dissolved. Bruce v. Platt, 80 N. Y., 379; Bradt v. Benedict, 17 id., 93; Slee v. Bloom, 9 Johns., 456; 20 id., 669; Pennusian v. Briggs, Hopkins, 300; Bank, etc., v. Ibbotson, 24 Werd., 473; Jones v. Barlow, 62 N. Y., 202; Garrison v. Howe, 17 id., 458; Huguenot N. Bk. v. Studwell, 74 id., 621; Losee v. Bullard, 79 id., 404; Bonnell v. Griswold, 80 id., 128; Brinkerhoff v. Brown, 7 Johns. Ch., 217; Sanborn v. Lefferts, 58 id., 179.
A company, whose property has been exhausted by legal process, and which neither is doing or intending to do any other act in furtherance of the object of its incorporation, may be, for every practical purpose, deemed to be dissolved, and its obligation to file a report terminated. Bruce v. Platt, 80 N. Y., 379.
The fact that a corporation has ceased to do business and is engaged in closing up its affairs, is no excuse for a failure to comply with the requirement of this section as to the filing of a report. Sanborn v. Lefferts, 58 N. Y., 179. In the absence of any legal dissolution of the company, these facts do not, nor does knowl edge upon the part of the creditor of the financial condition and embarrassments of the corporation affect their liability. Id.
Inability, or non-intention to continue business, excuses trustees from making annual report. Carraher v. Mulligan, 28 N. Y. St. Rep., 439; 54 Hun. 638.
The mere fact of an application by the attorney-general at the instance of two of the trustees for the dissolution of the corporation upon grounds undisclosed, where half of the trustees actively oppose the application, does not relieve them from the duty of making and filing the annual report. First Nat. Bk. v. Lamon, 41 N. Y. St. Rep., 684, rev'g 29 id., 181. Upon this point, see Sanborn v. Lef ferts, 58 N. Y., 179; Huguenot Bk. v. Studwell, 74 id.. 621; Losee v. Bullard, 79 id., 404; Bruce v. Platt, 80 id., 379; Van Amburgh v. Baker, id., 46; Kirkland v. Kille, 99 id., 390.