Majority
p. 125HYATT v. ROACH. N. Y. Supreme Court; Special Term, November, 1876.
Headnote
Reference.Compulsory reference cannot be ordered of an action to charge a trustee of a manufacturing corporation with a debt of the corporation, by reason of omission to file annual report, although the only issue is as to the indebtedness of the corporation on a long account.[1]
p. 126
Thaddeus Hyatt, and others, sued John Roach on his liability as trustee of a corporation, under the “Manufacturing Companies’ Act,” Laws of 1848, c. 40, § 12. The answer admitted that defendant was such trustee, and the omission to file report, but denied the alleged facts constituting the indebtedness.
Ambrose Monell, for plaintiff, moved for a compulsory reference, on the pleadings, and on an affidavit that the debt incurred by the corporation was for labor and materials ; and that the proof would involve a long account, of more than thirty items.
Geo. W. Van Siclen, opposed.
The action is brought to recover a penalty for neglect to file the annual report under section 12 of chapter 40, Laws of 1848. It is not upon contract (Merchants’ Bank v. Bliss, 35 N. Y. 412 ). The penalty imposed by that section is, that upon failure to file such report, the trustees of the company shall jointly and severally be liable for all the debts of the company then existing, &c.
The character of the action is determined by the
p. 127
complaint (Welsh v. Darragh, 52 N. Y. 590 ). An inspection of the complaint shows that it is not upon contract, but is brought to enforce a penal obligation of the defendant, under the statute, in his capacity as trastee.
Motion for reference denied, with costs.
Cases cited
- Merchants' Bank of New Haven v. Bliss 35 N. Y. 412 p. 126
- Welsh v. Darragh 52 N. Y. 590 p. 127