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First DEPARTMENT, March TERM, 1897. (Vol. 15. Julien T. Davies, Byron Traver, George L. Nichols and Benjamin H. Bayliss, for the appellants.

D. M. Porter, for the respondent.

Van Brunt, P. J.:

This action was brought against the defendants as directors of the Archer & Pancoast Manufacturing Company, a domestic corporation, for goods sold and delivered to said corporation between March 1, 1893, and May 19, 1893, the said company having failed to file its annual report for that year. The evidence showed that the Archer & Pancoast Manufacturing Company was organized in September, 1868, by the filing of a certificate of incorporation in the offices of the Secretary of State and of the clerk of the city and county of New York. On the 19th of February, 1890, the number of the directors of the company was increased from five to eight. At the time of the original election of the defendants as directors they held a sufficient number of shares of stock in said company to qualify them to act as such directors. On the 21st of July, 1990, all the capital stock of the company was transferred to the defendant Biddle, except the single shares held by the other defendants respectively; and during the years 1892 and 1893 each defendant, against whom a verdict was directed by the court below, held and owned but one share of stock. No annual report was filed in January, 1893. It further appeared that the defendants were duly elected directors of the company on the 16th of February, 1892, for the term expiring on the 16th of February, 1893, and were elected on February 21, 1893, and acted as such directors and managed the business and affairs of the corporation until the last of May, when receivers of the corporation were appointed, who had possession of the affairs of the corporation until November, 1893. In January. 1894, the corporation filed its annual report, signed by said directors. There is no dispute but that the goods in question were sold to the corporation.

Upon this state of facts the court directed a verdict in favor of the plaintiff, and from the judgment thereupon entered this appeal is taken.

Objection is taken in respect to the condition of the plaintiff's App. Div.] FIRST DEPARTMENT, MARCH TERM, 1897. proof at the time of the termination of this case, that there was no evidence that the defendants were elected directors for the year 1893. It is sufficient to say, in answer to this objection, that it appeared subsequently in the case that an election was held in February, 1893, at which the defendants were elected directors for 1893, and that they were such directors during the period when the corporation was in default in filing its annual report, and the period during which the goods in question were sold and delivered by the plaintiff to the corporation.

The further objection is raised that the directors not holding five shares of stock were not qualified to hold the position to which they were elected. It appears that in July, 1890, all the directors transferred all their shares of stock except one. What the object of this transfer was does not appear, except perhaps to escape the obligations which pertained to the office of director, upon the theory that they were disqualified from being directors, and consequently could not be held liable as such. It has been suggested by the counsel for the respondent that all that was necessary after the organization of the company was that the directors should be stockholders; and that the provisions of section 2 of chapter 691 of the Laws of 1892 did not apply, but rather the provisions of section 20 of chapter 688 of the laws of that year. Upon an examination of this section, however, it will appear that the requirement that the directors shall hold five shares of stock does not obtain as to the directors of the first year only, but is a general requirement relating to the office of director. We do not think, however, that the defendants can avail themselves of any such objection for the purpose of escaping the liability attaching to the office which they claimed to have usurped. They were elected directors of the corporation; they accepted the position ; they managed the business and affairs of the corporation, assuming all the duties and emoluments attached thereto; and it is too late now for them to attempt to escape the burden. Their title to the office cannot be attacked collaterally. They were de facto directors, and they cannot now claim that they were not directors de jure, not because of any estoppel, but simply because the rule of law is well established that he who enters upon an office and exercises all its functions is responsible for his acts therein to the same extent as though he of right occupied the position.

FIRST DEPARTMENT, MARCH TERM, 1897. [Vol. 16. It seems to us that, it having been established that these defendants were elected directors, that they accepted the office and exercised its duties without any one questioning their title, they cannot now denude themselves of the office which they have taken for the purpose of escaping the responsibilities attaching thereto.

The claim made by the appellant, that the plaintiff cannot maintain this action because he was not a judgment creditor of the corporation with an execution returned unsatisfied, has been disposed of by this court in the case of Camp Mfg. Co. v. Reamer (14 App. Div. 408).

The judgment should be affirmed, with costs.

WILLIAMS, PATTERSON, O'Brien and INGRAHAM, JJ., concurred.

Judgment affirmed, with costs.

Edwin C. KELLOGG, Plaintiff, v. The Mayor, ALDERMEN AND Com

MONALTY OF THE CITY OF NEW YORK, Defendant.

An action against a city, brought by a husband for the loss of his wife's serrices it

is one " for damages for personal injuries," within Lands 1886, chap. 572, 81– it must be brought within a year, and notice of an intention to sue must be given

An action, brought by a husband to recover for the loss of his wife's services, occasioned by injuries alleged to have been caused by the negligence of the city of New York, and also to recover for expenses which have been incurred by reason of such injuries, is an action which comes within the provisions of section 1 of chapter 572 of the Laws of 1886, providing that an action shall not be maintained against a city “for damages for personal injuries" unless it is commenced within a year after the cause of action accrued, and unless notice of an intention to commence the action, and of the time and place at which the injuries were received, shall have been filed with the counsel to the corporation, or other proper law officer thereof, within six months after the cause of action shall have accrued.

Motion by the defendant, The Mayor, Aldermen and Commonalty of the City of New York, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, pursuant to section 1000 of the Code of Civil Procedure, upon the verdict of a jury rendered after a trial at a Trial Terin App. Div.] FIRST DEPARTMENT, MARCH TERM, 1897. of the Supreme Court held in and for the county of New York on the 30th day of October, 1896.

L. J. Morrison, for the plaintiff.

Robert C. Beatty and Francis M. Scott, for the defendant.

WILLIAMS, J.:

The action was brought by a husband to recover for the loss of services of his wife, occasioned by injuries received by her, alleged to have been caused by the negligence of the defendant, and also to recover for expenses incurred for medicines, medical attendance, care and nursing of the wife rendered necessary by such injuries so caused. The injuries were received on the 26th day of March, 1891. The action was commenced December 11, 1893. There was never any notice of intention to commence the action served upon the counsel to the corporation. The answer set up the one-year Statute of Limitations and the failure to serve such notice of intention to commence action, and called attention to the provisions of chapter 572, Laws of 1886. There was a trial and verdict for the plaintiff, the defendant raising these questions, but giving no evidence as to the merits of the claims in other respects.

There is no dispute as to the facts, and the only question is whether the plaintiff's right of action was lost by a failure to comply with the provisions of the statute above referred to.

The statute provides in brief : Section 1. “No action against the mayor, aldermen and commonalty * * * for damages for personal injuries alleged to have been sustained by reason of the negligence of such mayor, aldermen and commonalty * * * shall be maintained unless the same shall be commenced within one year after the cause of action therefor shall have accrued, nor unless notice of the intention to commence such action, and of the time and place at which the injuries were received, shall have been filed with the counsel to the corporation, or other proper law officer thereof, within six months after such cause of action shall have accrued.

The plaintiff claims the action is not for damages for personal injuries sustained by reason of negligence of the defendant so as to bring it within the provision of this statute, but is an action to First DEPARTMENT, MARCH TERM, 1897. (Vol. 15. recover for an injury to a property right. We think, however, that there can be no doubt that the action is one directly within the provisions of the statute. Whatever the courts may have written in other cases, the Court of Appeals in Maxson v. R. R. Co. (112 N. Y. 561) made it quite clear that such an action as this was an action for damages for personal injuries. That was an action like this for loss of services of the wife, etc., by reason of personal injuries to her, cansed by the negligence of the defendant. The defense was the three years' Statute of Limitations under section 383, subdivision 5, Code of Civil Procedure, which read as follows: 5. “ An action to recover damages for a personal injury resulting from negligence.” It was held that this provision of the Code applied to the case in hand, and to every case where the action was founded on the fact of an injury to a person, accompanied by negligence, whether the person was that of the plaintiff or of any other individual, for whose injury the plaintiff was entitled to bring the action.

The language of the act in question is not materially different from that of the three years' statute in the Code considered in the case above cited. In both, the action is for damages for a personal injury."

The discussion of the question is quite full in that case, and we need not quote from the opinion here. We regard that case as conclusive and controlling upon us in the determination of this appeal.

In Curry v. The City of Butt'ulo (135 N. Y. 366) it was held that a compliance with the provisions of the statute in question, as to the service of the notice, was a condition precedent to the right to bring the action, and the commencement of the action could not be regarded as such notice. It was held in that case that the action could not be maintained in the absence of such notice, and we must decide in the same way here.

This question was distinctly raised by motion at the commencement and close of the case, and by the motion for a new trial. The one-year Statute of Limitations contained in this same statute is equally a defense to this action. The action was not commenced until more than two years after the injuries were received, and the plaintiff's right of action had accrued. The statute was pleaded, and the motion for a new trial, the facts being undisputed, raised this question as well as the one relating to the failure to serve notice.

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