Reed v. Keese

Headnote

This was an action against defendants as trustees of the Bartlett Reversible Sewing Machine Company, organized under the general manufacturing law (chap. 40, Laws of 1848), to recover a debt due from the corporation on the ground of a failure to file the annual report as required by said act.

The complaint alleged that the company. was incorporated in 1869; that defendants were named as trustees, and continued to be such until after the contracting of the debt in question. The organization, and that defendants were the first trustees, was admitted by the answer. It appeared that no report was filed until January, 1872. It was not alleged in the answer, nor was it proved, that any election of trustees was held, or that defendants ceased to be such. Acts of each of the defendants as trustees prior

to August, 1870, were proved, also that they were in the business office and manufacturing establishment of the company in August, I860, conversing and inquiring about the business, and that they signed and verified, as trustees, the annual report of January, 1872. Held, that these facts being neither controverted nor explained, conclusively proved the continuance of defendants in office as averred in the complaint ; that trustees thus holding over were subject to all the liabilities imposed by law upon trustees regularly and annually chosen (.Demi/ng v. Puliston, 55 N. Y., 655 ; Jan v. Lefferts, 16 Abb. [N. S.], 42), and that defendants were liable for the debts of the company from January, 1870, to January, 1872. (Boughton v. Otis, 21 N. Y., 261 ; S. & H Quarry Co. v. Bliss, 27 id., 297 .)

The merchandise for which plaintiffs sought to recover was such as the corporation had occasion to use in its business ; it was bought for it by one Van Dyke, who, with one Early, both trustees of the corporation, were the general agents, having full control and management of its business, under an agreement and power of attorney, in writing. The goods were delivered to the company’s agents, at its factory, and some part was used in its business. Held, that the creation of the debt was conclusively established, and left no question of fact for the jury.