Losee v. . Bullard , 1880 N.Y. LEXIS 10 ( 1880 )

If the respondent ever became liable for the amount recovered by the plaintiffs' testator against the Saratoga Paper Company, such liability accrued and was complete at least as early as the year 1868, the judgment having been recovered in April, 1867, and the statement required by the statute not having been filed in January, 1868. Assuming that this judgment then was an existing debt of the company, for which the omission to file the statement rendered the respondent liable, this action should have been brought within three years from the time the cause of action against him accrued. (Merchants' Bank v. Bliss,35 N.Y., 412.) It was not brought until June 5, 1875, and was at that time clearly barred by the statute.

The appellants claim that the failure to file the certificate in each year after 1868, created a new liability on the part of the defendant, and that consequently the default in 1873 and the subsequent years can be resorted to for the purpose of maintaining this action and avoiding the effect of the statute of limitations. We think this position untenable, for two reasons. In the first place the statute requires that the action be brought within three years from the time the cause of action accrued. The action was for a statutory penalty. This penalty, if it ever was incurred, was completely incurred in 1868, and the testator of the plaintiffs could then have brought his action therefor. We do not think that the continuance of the default in successive years had the effect of renewing the liability of the respondent, as would a new promise or a payment on account, in the case of a liability founded on contract. The remarks of COMSTOCK, J., in Boughton v. Otis (21 N.Y., 264), are not applicable to this case. They relate to the liability of successive trustees, for the same debts, not of the same trustee for the same debt by reason of successive defaults. They do not affect the question whether a trustee having once become liable for a particular debt, the statute of limitations begins to run in his favor from that time as to that debt, notwithstanding that the default may be continued during successive years.

We are also of opinion, however, that even if successive defaults could continue or renew the liability, no default was shown to have been committed by the respondent within three years before the commencement of this action. The latest default alleged, of which the appellants could on any theory avail themselves, was the omission to file the statement in January, 1873, this action not having been brought until June 5, 1875. It appears from the findings that the corporation ceased to do business in 1865, and that it contracted no debts after that time. That from and after January 20, 1865, it suspended its ordinary business and never has resumed it, the only act shown to have been done being the payment by the respondent, in 1872, of one debt of the company incurred prior to 1865, and on which an action was pending. That in May, 1870, the defendants Edward F. Bullard and Coe S. Buchanan, who were the co-trustees of the company under the original articles of association, sold all their stock to the respondent, D.A. Bullard, and never afterwards acted as trustees, and that from that date the respondent, D.A. Bullard, was the only stockholder. It does not appear that there ever was any election of officers or trustees after 1863 when the company was organized and Buchanan was elected president; and it is found that no president was ever afterwards elected. Under these circumstances we think the corporation was practically abandoned and broken up, if not technically dissolved, and that the statutory requirement had no application to it. It had not only ceased business, but was incapable of transacting any. It had no trustees or officers who could manage its affairs, or make the required statement. All its powers were suspended, if not finally extinguished. It would, we think, be a perversion of the intent of the statute in question to visit its penalty upon a party upon the ground that he had been a trustee of a corporation thus situated. As said by SPENCER, J., in Slee v. Bloom (19 J.R., 476), for all the substantial purposes of justice, and in effect, the corporation was dissolved. A technical dissolution is not necessary to relieve trustees from the consequences of not filing an annual statement. In Huguenot N. Bank v. Studwell (74 N.Y., 621), it was held that on the appointment of a receiver, without a final decree of dissolution, the corporation was so far dissolved that thereafter there was no duty upon the trustees to make the annual report. In Sanborn v. Lefferts (58 N.Y., 179), the corporation had not, at the time of the default, even suspended its ordinary business for one year; the defendant held over and acted as trustee until after the time the annual statement should have been filed, and the action was brought within three years after the first default.

The points discussed are quite sufficient to sustain the judgment without reference to the question whether the plaintiff's testator was a creditor, for whose claim a trustee could be liable under the statute, or to the point that the judgment against the corporation was not evidence of its indebtedness, as against the trustees.

By placing our decision upon all the facts appearing in the case we do not intend to intimate that the omission to file the statement in 1868 after the corporation had discontinued business for three years rendered the defendant liable.

The judgment should be affirmed.

All concur.

Judgment affirmed.