App. Div.] Fourth Department, March, 1910. the legal effect of his subscription, and I think he was right in so deciding. The appellants also contend that no corporation was ever formed because the incorporators did not sign the certificate at the end, and, therefore, Lighthouse never became a stockholder. The certificate was signed by the incorporators above the attestation clause, and they acknowledged the execution thereof, and the certificate of acknowledgment is subjoined thereto. The filing of the certificate as required by law and what was thereafter done by the incorporators was at least sufficient to form a de facto corporation, and Lighthouse having held himself out as a stockholder, acted as such, and taken part in the affairs of the corporation, cannot now question the legal existence of the corporation in that respect or his liability as a stockholder upon the ground that his written subscription was conditional. (Phoenix Warehousing Co. v. Badger, 6 Hun, 293; Yonkers Gazette Co. v. Jones, 30 App. Div. 316; Beals v. Buffalo Construction Co., 49 id. 589.) Appellants further urge that the action is not maintainable by the plaintiff for the reason that the corporation has been dissolved and a receiver appointed; that all the assets of the corporation are in custodia legis; that the receiver, if any one, should bring the action. It is only necessary to say that the liability here arises upon the statute itself, and that the question has been quite recently decided adversely to the appellants in this court. (Ford v. Chase, 118 App. Div. 605; affd., 189 N. Y. 504.) The other objections urged by the learned counsel for the appellant have been considered, but are insufficient, as I think, to justify a reversal of the judgment. I think the case was correctly decided and that the judgment should be affirmed, with costs. All concurred. Interlocutory judgment affirmed, with costs. Fourth Department, March, 1910. [Vol. 137. THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. CHARLES M. OTIS, Appellant. Fourth Department, March 9, 1910. Crime- disfigurement of cemetery monument by joint owner. One who is joint owner of a cemetery lot and removes an inscription from a tombstone against the protest of the other owners, is not guilty of a crime under subdivision 2 of section 1427 of the Penal Law which makes it a misdemeanor for one not an owner to deface a monument without lawful authority. Such act by a joint owner may be illegal so as to create a civil liability, but it is not a crime under the statute. MCLENNAN, P. J., and SPRING, J., dissented, with opinion. APPEAL by the defendant, Charles M. Otis, from a judgment of the County Court of Jefferson county, rendered against the defendant on the 22d day of October, 1909, upon the verdict of a jury convicting him of the crime of violating subdivision 2 of section 1427 of the Penal Law, and also from an order entered on the 27th day October, 1909, denying the defendant's motion for a new trial. Edgar V. Bloodough, for the appellant. Fred B. Pitcher, District Attorney, for the respondent. WILLIAMS, J.: The judgment should be reversed and a new trial granted. All questions of fact have been settled by the verdict of the jury in favor of the People and against the defendant. The only question here is one of law, whether the statute under which the indictment was found and defendant was tried, covers this case. The defendant was a joint owner of a lot and monument standing thereon in Brookside Cemetery, in the city of Watertown, N. Y. Other members of the family were joint owners with him of the lot and monument. He was not the sole owner. The statute pro vides that "Any person who * * * not being the owner thereof, and without lawful authority, wilfully injures, disfigures, removes or destroys a * * in a * * * monument * Fourth Department, March, 1910. is guilty of a misdemeanor." (Penal Law, The defendant was tried and convicted upon the theory and instruction to the jury that the words "not being the owner thereof " mean not being the sole owner "thereof." I think this is not a proper construction of the statute. The question is not whether the defendant had a legal right to remove the Cadwell inscription from the monument but whether such act was a crime under this statute. It may well be that under the circumstances developed in the evidence the Cadwell inscription was properly placed upon the monument and the defendant had no legal right to remove it therefrom. For such illegal removal the law would furnish a remedy. That is not the question here involved. When various members of a family are jointly interested in a monument differences are liable to arise as to the rights of parties, that is, where their respective inscriptions shall be placed and whether the names of their relatives shall be put upon the monument, etc. When these differences arise, the courts will settle them, but if some one of the parties assumes to settle differences himself without the aid of the court, and is mistaken as to his legal rights, can it be said he is liable under this statute for punishment as for a crime? Was it the intention by this statute to make the acts of a joint owner criminal or merely to protect the owners, one or many, against the acts of outsiders, persons having no interest in the monument whatever? I do not think this statute was designed to cover a case like this where there are differences between persons jointly interested in a monument as members of a family. It does not at all follow that taking this view of the statute is equivalent to holding that any one of the interested persons may legally remove an inscription from a monument so jointly owned. The act may be illegal and the Legislature still not have chosen to make it a crime. Criminal statutes should be strictly construed in favor of a defendant. If the Legislature intended this statute to cover all owners except sole owners, it would have been very easy to put the word "sole" in the statute. Having left it out, the construction should not be such as practically to write it into the statute. I am aware of no decisions bearing upon this question. It is not a matter of sentiment. It is not a question whether a person may Fourth Department, March, 1910. [Vol. 137. lawfully deface a monument, but whether the act, if illegal, is a trespass or a crime under this statute. There are many illegal acts which the Legislature has not chosen to make crimes. If they are not made crimes, they are not, therefore, any less illegal, and there is no right to commit such illegal acts. It will not do to say that if we hold this statute does not cover joint owners we thereby hold a joint owner may lawfully injure or disfigure monuments. If the statute does not cover joint owners, and it is desirable that it should do so, the Legislature should amend it. The court should not attempt to make such amendment by a forced judicial construction. To recapitulate: A person who is the sole owner of a monument may do what he pleases to it. He may deface it, remove inscriptions from it, and mutilate it any way he sees fit, and he not only commits no crime, but no illegal act, however much he may shock the community at large. He may do as he pleases with his own. A person having no interest at all in a monument and who defaces, disfigures or mutilates it is not only guilty of an illegal act, but commits a crime under this statute. A joint owner interested with others in a monument, who removes an inscription therefrom under claim of right to do so, but who has no such right in fact, is guilty of an illegal act, but is not guilty of a crime under the statute. All concurred, KRUSE, J., with a separate memorandum, except MCLENNAN, P. J., and SPRING, J., who dissented in an opinion by MCLENNAN, P. J. KRUSE, J. (concurring): I concur in the opinion of Mr. Justice WILLIAMS, but desire to add a single suggestion: I think the jury could have found from the evidence that the side of the monument which was used by Cadwell had been reserved for the defendant's family. It is even claimed Mrs. Cadwell had no interest in the monument at all. Upon that subject the learned county judge charged the jury as follows: "Whether or not Mrs. Cadwell contributed to the con App. Div.] Fourth Department, March, 1910. struction of the monument is no consequence, because being an owner in common of the lot, that carries with it ownership in any permanent structure on the lot. For instance, if I am the owner of a farm in common with you, and you build a building on it, you have no right to remove it, it being a permanent structure and we being owners in common of the property, without our consent. So in this case the monument being on the lot to which she had a common ownership, she was an owner in common of the lot as well as of the monument." I think the law of fixtures has no application to a case like this. Under the deed from the cemetery association the lot owners acquired only a privilege or license to make interments and use the lot for cemetery purposes. (Buffalo City Cemetery v. City of Buffalo, 46 N. Y. 503; Went v. Methodist Protestant Church, 80 Hun, 266.) The mere placing of the monument upon the lot did not necessarily give Mrs. Cadwell any interest therein. MCLENNAN, P. J. (dissenting): Subdivision 2 of section 1427 of the Penal Law provides: "Any person * * * who: "2. Not being the owner thereof, and without lawful authority, wilfully injures, disfigures, removes or destroys a gravestone, monument, work of art, or useful or ornamental improvement, or any shade tree or ornamental plant, whether situated upon private grounds or upon, the street, road or sidewalk, cemetery or public park or place, or removes from any grave in a cemetery any flowers, memorials or other tokens of affection, or other thing connected with them, "Is guilty of a misdemeanor." The indictment charged, in substance, that said Charles M. Otis, on the 24th day of June, 1909, at the town of Watertown, in the county of Jefferson, within the Brookside Cemetery, did willfully, wrongfully and maliciously and without lawful authority injure, mutilate, disfigure and deface a certain monument, known as the "Otis" monument, which was upon a certain burial lot in said cemetery, he, said Charles M. Otis, not being the owner thereof. The chief question presented by this appeal is: Was the defendant, when he committed the acts complained of, the owner of the |