Chapman v. Chumar — 26 N.Y. St. Rep. 473

Majority

p. 473

L. Byron Chapman, Resp’t, v. Charles H. Chumar et al., Impl’d, App'lts.

(Supreme Court, General Term, Fifth Department,

Filed October 19, 1889.)

Headnote

Manufacturing companies — Stockholders—Book-keeper is a servant within Laws 1848, chap. 40, § 18.

The book-keeper of a manufacturing corporation who has no other duties to perform is a servant within § 18 of the act which makes the stockholders liable for debts due to servants of the corporation for services, performed for it.

Appeal from an interlocutory judgment entered upon the decision of the special term at Wyoming county, overruling the defendants! demurrer with leave to them to plead over.

Frank W. Brown, for resp’t; A. J. Abbott, for app’lts.

By this action the plaintiff, who is a judgment creditor of the Eldridge Salt Company, seeks to make responsible the directors of that corporation for the payment of his debt

The plaintiff was, during the months of January, February- and March, 1888, employed by that corporation as book-keeper at the agreed price of $75 per month, amounting in the whole to the sum of $225, upon which there had been paid only the sum of $35. The plaintiff properly alleges the recovery of the judgment and the issue of the execution thereon and the return thereof unsatisfied against the corporation. This corporation was formed under the general Laws of 1848, chap. 40, § 18 of which provides-that the stockholders shall' be jointly and severally liable for all debts which shall be due and owing to all their laborers, servants and apprentices for services performed for such corporation.

We do not understand that the purpose of this action is to charge any of the defendants with liability under any other section of this act. The only question worthy of discussion as it. seems

p. 474

to us is, whether the defendant was a servant within the meaning of this statute. It is not shown by the complaint that he had any other duties to perform than those of book-keeper. We must assume, therefore, that he was not an officer of the corporation; 'that he was not a superintendent, and that he had no general "supervising powers by which there was lodged in him any discretion, or any control over the actions or conduct of the corporation or its officers and employes. If, in truth, the plaintiff ever performed any duties other than those technically of a bookkeeper, that is to say, a person who simply records the financial transactions of the concern, without power to direct or manage, the same does not appear by any allegation in the complaint.

' In all of the cases cited by the counsel for the appellants, Dean v. DeWolf, 16 Hun, 186 , affirmed in 82 N. Y., 626 ; Aikin v. Wasson, 24 N. Y., 482 ; Coffin v. Reynolds, 37 id., 640; Gurney v. The A. & G. W. R'y. Co., 58 id.. 367; Wakefield v. Fargo, 90 id., 213, as well as in Hill v. Spencer, 61 id., 274, and Krauser v. Ruckel, 17 Hun, 463 , the person claiming the benefit of this •statute, while in part performing menial duties which would in terms bring him within its provisions, also was charged with some superintending duty that took him out of the description of servants who worked for, and were directed solely by, a master, and who had no discretionary or supervising powers over the corporation or its officers or men. An examination of these several authorities will show this- to be the case without an exception, and hence they are not applicable to the facts alleged in this complaint.

'The judgment entered upon the decision should be affirmed, "with costs, but with leave to the defendants to plead over on payment of the costs of the demurrer and of this appeal.

Dwight, P. J., and Childs, J., concur.