Cincinnati Cooperage Co. v. O'Keiffe

It is conceded by the parties, and found as a fact, that no report was made, filed or published in January, 1884, but that one was made and verified in the form prescribed by the section on the 21st day of December, 1883; was published the next day in a newspaper printed in the city wherein the business of the corporation was carried on, and filed in the office of the clerk of the proper county on the 28th day of same month, which the defendants assert was a compliance with the section. Otherwise stated, the defendants’ position is, that the section may be complied with by making a report within twenty days before or after the first day of January. This precise question has not been determined by the courts of this state in a reported case, except in the case at bar, and in Guggenheimer v. O'Keiffe, 1 N. Y. State Rep., 295; but we think the general understanding of the bench and bar has been, that such reports must be made in the month of January in each year.

In Boughton v. Otis, 21 N. Y., 261 , Judge Denio said: “There is an implication in the section of the statute under which it is sought to charge the defendant, that the report which ought to be made within the first twenty days of January in each year may be made afterward, so as to prevent further liability from attaching.”

In Bolen v. Crosby, 49 N. Y., 183 , Judge Allen said: “ Upon default of any company in making the report for more than twenty-days after the first of January in any year, the trustees are made jointly and severally liable for all the debts of the company then existing, or that shall be contracted before such report shall be made.”

In Cameron v. Seaman, 69 N. Y., 396 , Judge Andrews said: “ The statute intended to give the companies twenty days after the first day of January in each year to make up their accounts and prepare the statement to be embodied in the report.”

If the defendants’ contention is to prevail and “ from ” is given the signification of the word “of,” instead of “after,” corporations will have forty days instead of twenty in which to make their reports, and it would be possible to comply with the sections without filing a report “ in each year.” For example, a report made in the last twenty days of December, 1883, and the next in January, 1885, before the expiration of twenty days from the first day, would have been a compliance with the section, though none was made in the year 1884, and so a report made during the last twenty days of December, 1885,- which would make two reports in that calendar year, and the next one made in January 1887, would, under such a construction of the statute, have been a compliance with it. We think this construction would lead to a result not contemplated by the law-making power, and that the legislature intended that the reports called for by the section

It is urged in behalf of these defendants that in making, filing and publishing their report in December, they acted in good "faith, and for that reason should not be subject to the liability imposed by the statute. If personal good faith can be successfully interposed as a defense to the liability imposed for violating this statute, no general rule for the protection of the public, no matter how plainly written in a statute, could be enforced, for the question would always be, not was the statute violated, but was wrong intended by its violator. The requirement is a wise one designed for the protection of all having occasion to deal with such corporations, and it should not be frittered away by strained and overindulgent construction.

The contention that a correct report having been filed in December, which remained on file in January, and was then true, is a compliance with the statute, is untenable. It might as well be argued that a correct report made and filed in November, or in any preceding month, and remaining on file in January, and true, would be a compliance with the section.

The judgment should be affirmed, with costs.

All concur, except Vann and Haight, JJ., dissenting.