Shaler & Hall Quarry Co. v. Brewster , 10 Abb. Pr. 464 ( 1860 )

Brady, J.

The debt sought to be enforced in this case was contracted on the 12th day of April, 1854. The defendant was elected a trustee of the Hudson River Stone-Dressing Company on the 18th of April, 1854. The liability of the defendant to pay the debt mentioned, is predicated of the failure of that company to make and file within twenty days from the 1st January, 1854, or at any time thereafter until the 81st of July, 1854, the report required to be made and filed by the provisions of section 12 of the act entitled “An act to authorize the formation of corporations for manufacturing, mining, mechanical, or chemical purposes,” passed February 17, 1848, and under which act the Hudson River Stone-Dressing Company was formed. Section 12, referred to, provides that such company shall annually within twenty days from the 1st day of January, make a report, which shall state the amount of capital, and of the proportion actually paid in, and the amount of its existing debts, and be signed by the president and a majority of the trustees, and be verified by the president or secretary, and filed in the office of the clerk of the county where the business of the company shall be carried on. It also provides that if any company shall fail to make such a report, all the trustees of the company shall be liable jointly and severally for the debts of the company then existing, and for all that shall be contracted before such report shall be made. The first question presented on the facts herein is, whether the defendant is liable for a debt contracted before he became a trustee, under and by virtue of any thing contained in the section mentioned. The trustees, whoever they were on the 21st January, 1,854, became liable, jointly and severally for all debts existing at that time against the company, and they continued to be liable for all debts contracted before the report was made. Whoever the trustees were on the 13th April, 1854, they became liable to the plaintiffs for their debt, because it was contracted on the 12th April, 1854, and no report was filed on the 13th April, which was the day following. Exjpressio unius est exclusio alterius. The defendant did not become a trustee until the 18th April, 1854, at which time the plaintiffs’ rights were fixed and determined, and the liability of the persons contemplated by the statute settled. It is very clear that as to the debts of the company existing on the 21st January, the creditors had on that day a right of action against the trustees then existing, and it is apparent that the penalty of a continued omission to make the report was designed to attach to such trustees. The language of the statute is, “ all the trustees of the company shall be liable for the debts of the company then existing, and for all that shall be contracted before such report shall be made.” The report itself refers to the affairs of the company within twenty days from the 1st January, and the duty of making it did not devolve upon the defendant. He was not a trustee when that duty commenced. If the company had failed to file a report in 1855, the defendant being then a trustee, his liability would have been created. The Court of Appeals have said (Garrison a. Howe, 17 N. Y. R., 466), “ The provision making trustees liable is highly penal, and the rules of law do not permit us to extend it by construction to cases not fairly within the language.” I think this case not fairly within the language of "section 12, and that the judgment of the special term should be affirmed.

Halt, F. J., and Hilton, J., concurred.

Judgment affirmed.