Uptegrove v. Schwarzwaelder , 46 A.D. 20 ( 1899 )

Ingraham, J.:

The action is brought to recover from the defendants, directors of a domestic corporation, an indebtedness of the corporation because of a failure of tlm corporation to file a report in the office of the clerk of the county of Ulster. The action was tried by the court without a jury. This appeal was heard upon the judgment roll, no case having been, made, and the only question is whether upon the facts found by the court below the plaintiffs are entitled to judgment. The court found' that, during the. whole of the year 1896 and including the 30th of January, 1897, William Schwarzwaelder & Company was a domestic stock corporation organized under and pursuant to the laws of the State of New York, and was then and there neither a moneyed nor a railroad corporation, and-was not then and there doing business without the United States, and that the defendants were directors of the said corporation;, that the certificate of incorporation of the said corporation which was filed on Hay 9, 1893, designated Chichester, Ulster county, in the State of Hew York, as the location of its principal business office, which is the only certificate filed designating its principal business office; that the said corporation did not, at any time during the year 1896, file an annual report as of the 1st of January, 1896, in the office of the clerk of' Ulster county; nor did it at any time prior to the 30th of January, 1897, file an annual report as of the 1st of January, 1897, in the office of the clerk of Ulster county; nor did the defendants, or either of them, make a certificate in lieu of such annual report at any times during the years 1896 and 1897, and file the same in the office of the Secretary of State of Hew York.

By section 30 of the Stock Corporation Law (Chap. 688 of the Laws of 1892, in force during the years 1896 and 1897) it is provided that every stock corporation, except moneyed and railroad eoiporations, shall annually, during the month of January, or, if doing business without the United States, before the first day of Hay, make a report as of the' first day of January, which report shall be signed by a majority of its directors and duly verified and filed in the office of the Secretary of State and in the office of the county clerk of the county where its principal business office may be located. “ If such report is not so made and filed, all the directors of the corporation shall jointly and severally be personally liable for all the debts of the corporation then existing, and for all contracted before such report shall be made.”

It was also found by the court that in the month of July, 1895, all of the stockholders of the' corporation duly met at the office of their counsel in the ¿ity of Hew York and unanimously adopted a resolution substantially as follows: “ The board of directors are hereby authorized and directed to change the principal business office of this corporation from Chichester, Ulster county, to the city and county of Hew York; ” and that thereafter and upon the samé day all of the directors of the said corporation, William Schwarzwaelder & Company, duly met at the same place and unanimously adopted a resolution substantially as follows: “ The principal business office of this corporation is hereby changed from Chichester, Ulster county, to the city and county of Hew York,” but’that no certificate to that effect was filed either in Ulster county or in Hew York county; that, “leaving out of consideration any presumption or estoppel due to the contents and filing of the certificate of incorporation of William Schwarzwaelder & Company, that at the time of the adoption of the said resolutions, and at all times thereafter and during the month of January, 1896, the business of the said corporation William Schwarzwaelder & Company was principally carried on in the city and county of New York, at which place, as matter of fact, the principal business office and place of . business of the. said corporation was located.”.

It then appears as a fact that the principal business office of the •corporation'was located in the city, of New York ; its principal business was there carried on, and that the corporation by a vote of its ¡stockholders and directors had declared that its principal business office should be there located. The court also found that the •directors of the said corporation made its annual report in due. form, ■as of the 1st day of January, 1896, and filed the same in the office of the •clerk of the city and county of New York on the 29th day of January, 1896, and in the office of the Secretary of State of New York on •the 31st day of January, 1896 ; that said report complied with the law and was signed by a majority of the directors of the corporation and was verified by the oath of its vice-president and treasurer.

We are thus presented with the question whether or not the filing of this report with the Secretary of State and in the office of the clerk of the city and county of New York was a compliance with section 30 of the Stock Corporation Law before referred to. The particular statute under which this corporation was incorporated :is not specified, in the pleading or in the* decision. The Business Corporations Law (§ 2, chap. 691, Laws of 1892) provides that the certificate of incorporation of a corporation organized under that act shall contain the “location of its principal business office.” If we assume that the corporation was incorporated under the Business Corporations. Law we have this provision, that the certificate of incorporation shall contain “ the location of its principal business office.” There is nothing in this act, nor is "there any provision of law to which our attention has been called, that prohibits a corporation from changing the location of its business office, or which requires that the place at which the certificate of incorporation stated that its business was to be transacted should be considered its principal- place of business, notwithstanding any change that, as a matter of fact, should take place. There is no prohibition as to an actual change of the locality at which it should transact the principal part of its business. If it became necessary or convenient for the corporation to change its principal business office from the county designated in the certificate to some other county because of the fact that the principal part of its business is transacted in the latter county, and such a change was actually effected, there is no express statutory provision which makes the locality at which the corporation, as a fact, does no business, the place where the principal business office of the corporation- must be located. Where a. corporation does business in two counties, one of which has been designated in its certificate of incorporation as the location of its. principal business office, and there has been no official change as-to the locality of its business office, if has been held that the principal place of business remains at the place designated in the certificate of incorporation. (People ex rel. Knick. Press v. Barker, 87 Hun, 342; Western Transportation Co. v. Scheu, 19 N. Y. 410.) What was said in those cases, however, related to the domicile of the corporation for the purpose of taxation, and there was no evidence that the corporation had, by any corporate act, or as a fact, changed its principal place of business.

We have presented in this case an entirely different condition. The plaintiffs here seek to enforce a penalty imposed upon these defendants, as trustees of this corporation, for a failure of the ' corporation to file a report. A statute imposing a penalty must be strictly construed. “ Its scope should not be enlarged by construction or implication, and the courts should not impose the penalty,, except in cases where the plain language of the section "requires-it.” (Whitaker v. Masterton, 106 N. Y. 280.) The provision of section 30 of the Stock Corporation Law, now under consideration, does not specifically refer to the business office named in the certificate of incorporation, but requires that the certificate-must be filed.in the office of the county clerk of the county where-the principal business office of the corporation may then be located. A fair construction of this statute would be that it referred to the-business office of the corporation as a fact, and not to a business-office that existed because of a presumption that arose in consequence of the insertion of a locality in the certificate of incorporation. It was found as a fact that this corporation, by a vote of its stockholders and directors, changed its principal business office to the city of Hew York, and, as a fact, that from that time forth, its principal business office was there located. There is nothing in the statute regulating corporations which prohibits such official action on behalf of the corporation. The corporation, acting through its stockholders and directors, as a matter of fact changed the place of its principal business office from Ulster county to Hew York. It was not prohibited from making such a change, and I can see no reason why such action should be held to- be illegal or ineffectual to consummate a change which, as a matter of fact, had taken place. That being so, the statute then required the corporation to file its annual report with the clerk of the city and county of Hew York and with the Secretary of State, and that obligation was1 duly complied with. There is no question but that these stockholders and directors acted in good faith, both in making the change and in subsequently filing the report as provided by law; and it would seem to be a harsh rule to impose upon these directors a liability when they complied with the statute according to its terms and filed their report at the locality where, as a matter of fact, their principal business office was located, because in their certificate of incorporation filed years before, and before the corporation was organized and the necessities of the business of the corporation were understood, it had designated a different locality as that in which its principal office should be located. The power of a corporation to actually change its place of business from one portion of the State to another has never been questioned; and the general principle that a corporation has, under the general powers granted to it, all incidental powers necessary to the proper transaction of its business, not expressly prohibited by statute, has been recognized by repeated adjudications of the courts of the State, and I can see no reason why an act of the corporation in thus changing its principal business office was invalid.

It may also' be said that the principle upon which the case of Wallace v. Walsh (125 N. Y. 33) was decided is equally applicable to the case now under consideration. In that case the corporation attempted to reduce the number of its trustees below that fixed by its certificate of incorporation, but, as was claimed by the plaintiff, failed to file the necessary certificate, and it was contended that, consequently, the report was not signed by the number of trustees which would constitute a majority of those legally authorized. It was held, however, that as the report was signed by a majority of the de facto trustees, the statute was complied with, and Chief Justice Rugeb said: “ The purpose of the provisions of the statute is to inform the public and those interested in the affairs of the company, of its financial standing and condition from time to time.- * * * And when such information has been published in good faith in'the manner and form pointed out by the statute, the trustees have done all that was in their power to comply with the provisions of the statute, and to avoid the incurrence of a penalty for the non-performance of the duty imposed. When a board of trustees, in fact authorized by the corporation, and having possession of its property and franchises, and undisputed control in the management of its affairs, has filed and published within the time limited the report required by the statute, certified .by a. majority of such board, and verified by the president, it has, we think, complied witli the letter and spirit of the law. It is not competent, we think, in such proceedings as this, for the creditors to show, with a view of creating a penalty or forfeiture, that some of the acting trustees were not duly elected, or for some reason, were disqualified from acting as such trustees, or to claim by reason of a non-performance or an irregularity in the performance of some prior duty enjoined upon stockholders, that an acting board of trustees was not, in fact, a board authorized to perform the general duties required of them as agents of the corporation ; ” that in an action of this character the plaintiff could not question the validity of an act of the corporation with a view of determining whether such, action was in conformity with the law controlling the corporation. From this it would seem that the validity of the action of this corporation in changing its principal business office could not be inquired into in this action.

The position taken by the plaintiffs is extremely technical and, if sustained, would impose upon these defendants a severe penalty because they misapprehended the power of the corporation in relation to the establishment of its principal business office for the transaction of its business. That there was not an intentional violation of the statute is clear, and I do not think that we are required to hold that there was a technical violation which would impose a penalty upon the defendants.

I think that the judgment should be reversed and a new trial ordered, with costs to the appellants to abide the event.

Van Brunt, P. J., concurred; Patterson and O’Brien, JJ., dissented.