Excelsior Petroleum Co. v. Embury

Headnote

Manufacturing corporations — frustees of.

Appeal from a judgment entered on the report of a referee.

The defendants in this action were charged with a violation of the provisions of the second section of the eighteenth chapter (title 4) of the first part of the Revised Statutes (voí. 1 [4th ed.], 1175), in having paid dividends, not from the surplus profits of the plaintiff, but by withdrawing and dividing a part of the capital stock without the consent of the legislature.

They were the trustees of a manufacturing corporation, organized under the act of 1848 and the acts amendatory thereof. The General Term was of opinion that, by the thirteenth section of the act of 1848, the legislature substantially designed to provide for the cases in which individual liability should result from the acts prohibited. (Rochester v. Barnes, 26 Barb., 657 .) That the two statutes were repugnant to each other, and that it was not the meaning or object of the law makers to apply both of these statutes to trustees of a

Corporation created under the law of 1848. (Sedgw. on Stat. and Const. Law, 124; Rochester v. Barnes, supra, and cases cited; Dash v. Van Kleeck, 7 Johns., 477 ; Columbian Manufacturing Co. v. Vanderpoel, 4 Cow., 556 ; Livingston v. Harris, 11 Wend., 329 ; Harrington v. Trustees of Rochester, 10 id., 547.)