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Fourth Department, March, 1910.

[Vol. 137. laws of this State, to be known as the State Hotel Company, to purchase certain real estate therein named, and thereafter conduct and carry on a hotel, the capital stock of which was to be $100,000, consisting of 1,000 shares, and the real estate to be put into the company at $55,000 by the present owners thereof, and paid-up stock issued to them therefor. The real estate belonged to Lighthouse. He conveyed it to some of his associates in the enterprise, who gave back a mortgage for $40,000, but paid nothing down. It was expected the corporation would take over the property and pay for it.

The corporation has all the power, according to its certificate of incorporation, that was contemplated by the subscription paper; and more than that. The objection now made on behalf of Lighthouse, that he is not a stockholder in the corporation because the certificate is more comprehensive in its terms as regards the purpose and business of the corporation than was contemplated by the subscription paper, I think is untenable. While there is no direct evidence to show that he had personal knowledge of the contents of the certificate he knew that a corporation had been formed; he was the owner of the real property referred to in the subscription paper and expected to be paid therefor from the proceeds of the sale of bonds of the corporation; he made loans to the company for the purpose of improving the property for a hotel; the lumber for which the judgment was obtained against the State Hotel Company and which forms the basis of this suit, was used in improving the property; he stated to the plaintiff's agent that he was a stockholder in the corporation ; that the plaintiff would be paid for the lumber; he gave a proxy and was represented by the holder thereof at a meeting of the stockholders of the company, which latter fact was expressly found by the trial court at the request of the defendant's attorney. In short, the evidence shows he was interested in the enterprise from the beginning, took an active part in its management, and regarded himself as a stockholder in the corporation.

In this connection, however, it should be stated and the trial court finds that Lighthouse signed the subscription paper upon an oral condition made at the time of signing that the subscription should not be binding unless and until the company had $40,000 with which to pay the mortgage given to him. The trial judge decided, however, that the oral condition was ineffectual to defeat 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 ont 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 provides that “Any person who * * * not being the owner thereof, and without lawful authority, wilfully injures, disfigures, removes or destroys a * * * monument * * * in a

App. Div.]

Fourth Department, March, 1910. cemetery * * * is guilty of a misdemeanor.” (Penal Law, $ 1427, subd. 2.)

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 lie not only commits no crime, but no illegal act, however much lie 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 nsed 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

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