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William Ottman & Co. v. Hoffman

7 Misc. 714 Court N.Y.C.P. English

Delivered by Bischoff, J.

Contents

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William Ottman & Co., Respondent, v. Joseph E. Hoffman, Appellant.
(New York Common Pleas—General Term,
April, 1894.)

Headnote

Section 3 of chapter 228, Laws of 1877, making the trustees of corporations organized without capital stock jointly and severally liable for debts of the corporation contracted while they are such trustees, was revived by the amendment of the Stock Corporation Law of 1890 by chapter 688, Laws of 1892.
The Statutory Construction Law of 1892 does not affect acts passed by the legislature at that session.
Appeal from a judgment of the General Term of the City Court of New York, which affirmed a judgment overruling a demurrer to, and awarded plaintiff the relief demanded in the complaint.
Action to recover for the debt of a corporation against one of its trustees pursuant to the provisions of section 3 of chapter 228 of the Laws of 1877, which are to the effect that the trustees of a corporation organized without capital stock should be jointly and severally liable for the debts of the corporation contracted while they were such trustees.
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Joseph Fettretch, for respondent.
Leo G. Iiosenblatt., for appellant.

By the express provisions of the Constitution of this state (Art. IV, § 9), acts of the legislature approved by the governor become effective as laws only upon such approval (Suth. Stat. Const. § 104) ; and whenever in the ascertainment of the rights and obligations of parties such becomes material, courts may inquire into the precise time when the several laws took effect. Town of Louisville v. Portsmouth Savings Bank, 104 U. S. 469 . In the case last cited Mr. Justice Hablas observed that “ courts may, when substantial justice requires it, ascertain the precise hour when a statute took effect by the approval of the executive. * * * We look to the final act of approval by the executive to find when the statute took effect and, when necessary, inquire as to the hour of the day when that approval was in fact given.” The legal fiction that the law does not recognize the fractions of a day does not obtain in such a case. Suth. Stat. Const. § 110. This is in accord with the views expressed by Judge Story in the following terse language : “ I am aware that it is often laid down that in law there is no fraction of a day. But this doctrine is true only sub modo, and in a limited sense, where it will promote the right and justice of the case. It is a mere legal fiction, and, therefore, like all other fictions, is never allowed to operate against the right and justice of the case. On the contrary, the very truth and facts, in point of time, may always be averred and proved in furtherance of the right and justice of the case, and there may be even a priority in an instant of time, or in other words, it may have a beginning and an end.” Matter of Richardson, 2 Story U. S. C. C. 571; see, also, Grosvenor v. Magill, 37 Ill. 239 ; Small v. McChesney, 3 Cow. 19 ; Clute v. Clute, 3 Den. 263 ; Phelan v. Douglass, 11 How. Pr. 193 ; Rusk v. Van Benschoten, 1 id. 149; Blydenburgh v. Cotheal, 4 N. Y. 418 .

The complaint predicates defendant’s liability upon the facts that at the time of the contraction of the alleged debt

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defendant was a trustee of the Importers & Traders’ Club, a corporation organized without capital stock pursuant to the provisions of chapter 228 of the Laws of 1877, and of the provisions of section 3 of the chapter and law last referred to, which are to the effect that the trustees of such a corporation shall be jointly and severally liable for all the debts contracted by it while the persons proceeded against were such trustees, and provided an action to enforce the liability is brought within two years from the time when the debt accrued. No question arises with reference to the contraction of the debt by the Importers & Traders’ Club, that defendant was a trustee at the time of the contraction of the debt, and that this action was brought in due time. The allegations of the complaint in these respects are admitted by defendant’s demurrer. Cutler v. Wright, 22 N. Y. 472 , 478. But •defendant contends the provisions of section 3 of chapter 228 of the Laws of 1877 were not in force at the time of the contraction of the debt, June 1, 1892, to December 31, 1892, and whether they were or not is the precise question intended to be raised by the demurrer.

The Stock Corporation Law (Chap. 564, Laws of 1890) in express terms repealed the provisions of section 3 of chapter 228 of the Laws of 1877. Section 70 of the Stock Corporation Law of 1890 provided that so nmch of the several laws which were enumerated in the schedule annexed to article IV of the act as was specified in the last column of the. schedule • should be deemed to be repealed, but that the repeal should not be deemed to have revived any prior law which was repealed by the law last repealed and should include within its effect all laws amendatory of the law last repealed. Among the laws specified in the last column of the schedule are sections 3, 4 and 5 of chapter 228 -of the Laws of 1877. Section 73 of the Stock Corporation Law of 1890 provided that the provisions of that act should be effective from and after May 1, 1891.

In 1892 (Chap. 688, Laws of 1892) the Stock Corporation Law of 1890 was amended. The amendatory act provided

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that the act of 1890 should “ read as follows,” and then substituted provisions which omit those of section 70 of the act of 1890 and others of like purport. Neither does the amendatory act of 1892 contain any provisions which are in conflict with the continued A'itality of section 8 of chapter 228 of the Laws of 1877. It is always to be assumed that the legislature acted deliberately and with full knoAvledge of all existing laws, and Avhen, therefore, it undertakes to substitute one law for another its intention to repeal the latter is obvious. Such a substitution is apparent from a subsequent act which provides that a former act shall be amended “ so as to read as follows ” (Moore v. Mausert, 49 N. Y. 332 ; People v. Supervisors, etc., 67 id. 109 ; Matter of Prime, 136 id. 347 ; Suth. Stat. Const. § 137), and since the effect of the repeal of a repealing law is to restore the law repealed by the latter, in the absence of a contrary intention expressly declared or necessarily to be implied from the enactment of provisions conflicting with those of the law Avliieh would otherwise be revived ( Wheeler v. Roberts, 7 Cow. 536 ; Van Denburgh v. Prest., etc., of Greenbush, 66 N. Y. 1 ; Suth. Stat. Const. §§ 162, 168), it is indisputable that the act of 1892 amendatory of the Stock Corporation Law of 1890 revived the provisions of section 3 of chapter 228 of the LaAvs of 1877 and restored them to full force and vigor with respect to all transactions subsequent to the taking effect of the amendatory act of 1892, unless the last-mentioned act is affected by the pixmsions of chapter 677' of the Laws of 1892, known as the Statutory Construction Law, and next to be noticed.

The Statutory Construction Law (Chap. 677, Laws of 1892) provides (§ 1) that the provisions of that act shall be applicable “ to eAtery statute, unless its general object, or the context of the language construed, or other provisions of law indicate that a different meaning or application was intended from that required to be given by this chapter,” and (§ 31) “ that the repeal hereafter, or by this chapter, of any proA-ision of a statute which repeals any provision of a prior statute does not revive such prior provision.” Obviously then, if the

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-act of 1892 (Chap. 688) amendatory of the Stock Corporation Law of 1890 is affected by the provisions of section 31 of the Statutory Construction Law of 1892 the repeal of the Stock •Corporation Law of 1890 did not revive the provisions of section 3 of chapter 228 of the Laws of 1877, and defendant thus would have to be absolved from liability thereunder. But both laws, the Statutory Construction Law of 1892, as well as the act of 1892 by which the Stock Corporation Law of 1890 was amended and repealed, were approved by the governor on .the same day and each provided that it should take effect immediately; and as the question of the order of their approval is presented to us by demurrer to the complaint, we have not the advantage of evidence adduced by either party to aid us in determining the order of tlieir priority in respect to .executive sanction and their consequent taking- of effect. Plaintiff, therefore, contends that since both acts took effect on the same day, it must be assumed that they became laws simultaneously ; and hence that the act amending and repealing the 'Stock Corporation Law of 1890 is not affected by the provisions of section 31 of the Statutory Construction Law of 1892, because that section is made applicable only to repeals subse-quent to its enactment. Defendant, on the other hand, maintains that inasmuch as the act of 1892, which amends and repeals the Stock Corporation Law of 1890, is numbered 688, while the Statutory Construction Law of 1892 is numbered •677, the presumption is that the acts were severally approved in the order in which they appear numbered, 677 being first and 688 later in point of time, and so that the inhibition of the revival of a law repealed by a law in turn also repealed, provided for by section 31 of the Statutory Construction Law ■of 1892 (Chap. 677), applies to the act of 1892 (Chap. 688) amending and repealing the Stock Corporation Law of 1890,. .and that section 3 of chapter 228 of the Laws of 1877 cannot, therefore, be deemed to have been revived by the repeal of section 70 of the Stock Corporation Law of 1890, and was, therefore, not in force at the time of the contraction of plaintiff’s demand against the Importers & Traders’ Club.
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In Metropolitan Board of Health v. Schmades, 3 Daly, 282 ; 10 Abb. Pr. (N. S.) 205, it was held at General Term of this court (Daly, Oh. J., and Van Brunt and Loew, JJ., concurring) that when two inconsistent acts of the legislature .are enacted on the same day, the order of their priority in enactment may, in the absence of facts to the contrary, be inferred to have been as indicated by their respective numbers, the one bearing the earlier number being deemed to have been first enacted. See, also, Strauss v. Heiss, 48 Md. 292 .

. The same result might, however, also be reached upon other grounds respecting the case at bar. It ivas incompetent for defendant to tender any issue of fact by pleading the later approval or enactment of the act of 1892, amending and repealing the Stock Corporation Law of 1890. The determination of that question comes within the range of those matters of which courts and judges are required to take judicial notice, ■and which need not, therefore, be proved. “ In line,” says Chief Judge Hunt in Swinnerton v. Columbian Ins. Co., 37 N. Y. 174 , “ courts will generally take notice of whatever ought to be generally known within the limits of their jurisdiction ; * * where the memory of the judge is at fault, lie resorts to such documents of reference as may be at hand and he may deem worthy of confidence.” In Purdy v. People, 4 Hill, 384 , the question was whether or not the act there under discussion ivas passed by a majority of the legislature or by a vote of two-thirds, and Senator Franklin observed (p. 404): “ Judges are bound to take notice of a general law, and it is their province to determine whether it be a statute or not; for, as against a general statute, nul tiel record cannot be pleaded, but it must be tried by the judges, who are to inform themselves in the best way they can.” In Town of South Ottawa v. Perkins, 94 U. S. 260 , it was held that the question whether an alleged statute “ is really a law or not is a judicial one, and is not a question of fact to be determined by a jury ; ” and this was approved in Walnut v. Wade, 103 U. S. 683 . In Gardner v. Barney, 73 id. 890, the controversy was concerning the time of the taking of

p. 720
effect of an act of congress by the president’s approval, and Mr. Justice Miller, in delivering the opinion of the court, declared: “ There is no reason, then, on sound principle, why the court should confine itself to the date made by the president, or, if he has made none, should rejéct all other sources-of knowledge. The judicial notice of the court must extend, not only to the existence of the statute, but to the time at which it takes effect, and to its true construction. * * * We are of opinion, therefore, on principle as well as authority, that whenever a question arises in a court of law of the existence of a statute, or of- the time when a statute took effect, or of the precise terms of a statute, the judges who are called upon to-decide it have a right to resort to any source of information which in its nature is capable of conveying to the judicial mind a clear and satisfactory answer to such question, always seeking first for that which in its nature is most appropriate, unless the positive law has enacted a différent rule.” In The Prince's Case, 8 Coke, 28, it was the opinion of the court “ that against a general act of parliament, or such an act whereof the judges ex officio ought to take notice, the other party cannot plead nul tiel record, for of such acts the judges ought to-take notice. But if it be misrecited the party ought to demur in law upon it. And in that case the law is grounded upon great reason, for God forbid, if the record of such acts should be lost, or consumed by fire, or other means, that it should tend to the general prejudice of the commonwealth; but rather,, although it be lost or consumed, the judges, either by the printed copyj or by the record in which it was pleaded, or by other means, may inform tliemselvés of it.” See, also, Hale’s History of the Common Law, 14, 16; 1 Kent’s Comm. 460; Lacy’s ed. 484, etc.; Suth. Stat. Const. §§ 181, 292 et seq. Judicial notice of a general statute extends to the time when it takes effect. Atty.-Genl. v. Foote, 11 Wis. 16 ; State v. Bailey, 16 Ind. 46 ; Heaston v. Cinn. & Ft. W. R. Co., Id. 275; Pierson v. Baird, 2 G. Greene, 235; Berliner v. Waterloo, 14 Wis. 378 .

We would be authorized, therefore, upon abundant author-

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it.y, in the absence of a record of the precise time of the day at which the several acts of the legislature were respectively approved by the governor, to inquire of those who, in the performance of their public duties, were present on the occasion of such approval, and to receive their statements to aid us in the determination of the question suggested by this appeal. It appears from the statement of State Senator John J. Luisón, submitted for appellant, that he was present when the Statutory Construction Law (Chap. 677, Laws of 1892) received executive approval, and that it was the first of the chapters, the priority of which is in dispute, which was so approved. Mr. T. S. Williams, then the governor’s private secretary, states that the exact time of approval was not recorded, but that bills are usually signed by the governor in the order in which they are numbered. We have no reason to doubt the accuracy of these statements. LTor are they disputed. As the result, therefore, we would be constrained to conclude that chapter 677 of the Laws of 1892 became effective before chapter 688 of the same year, and hence that the latter chapter was subsequent within the meaning of section 31 of chapter 677, and so that section 3 of chapter 228 of the Laws of 1877 was not revived by the repeal of the Statutory Construction Law of 1890.

But clearly the Statutory Construction Law of 1892 (Chap. 677) affords intrinsic evidence that it was not intended to and, therefore, did not affect acts passed by the legislature at the same session. Chapters 677 to 691 comprised the revision of general laws which was enacted by the legislature at its session of 1892. Section 33 of the Statutory Construction Law (Chap. 677) expressly provides that “Ko provision of any chapter of the revision of the general laws, of which this chapter is a part, shall supersede or repeal by implication any law passed at the same session of the legislature at which any such chapter was enacted, or passed after the enactment of any such chapter and before it shall have taken effect.” To hold, therefore, that the inhibition of section 31 of the Statutory

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Construction Law (Chap. 677) against the implied revival of the provisions of a statute repealed by another statute in turn also repealed applies to the act (Chap: 688) amendatory of and repealing the Stock Corporation Law of 1890 is in effect to say that the provisions of chapter 688, in so far as they operated to revive section 3 of chapter 228 of the Laws of 1877, were in fact superseded by the provisions of section 31 of chapter 677, though both chapters, 677 and 688, were enacted at the same session of the legislature. This would be contrary to the declared legislative intention, and in this aspect of the question it is immaterial which of the chapters was first approved by the governor.

We are of the opinion, therefore, that the question presented to us was correctly decided by the court below and that the judgment appealed from should be affirmed, with costs.

Bookstaver and Pbyor, JJ., concur.

Judgment affirmed, with costs.

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