Jones v. Mail & Express Publishing Co.

These are appeals by the defendant from the decision, order and interlocutory judgment overruling the demurrer of the defendant to the complaint of the plaintiff in each of the above-entitled actions upon the ground that they fail to state facts sufficient to constitute a cause of action.

The purpose of the suit is to enforce the statutory liability of the defendant as a stockholder of the New York Advertising Agency (Limited), for certain debts of that corporation, upon the ground of the failure of the directors of the defendant to file a certificate of the full payment of its capital stock, according to the requirements of section 37 of chapter 611 of the Laws of 1875.

The only question requiring attention is presented in this manner : The complaint alleges the failure of the defendant to file the certificate of the payment of its capital stock, as required by the statute, in the office of the clerk of the city and county of New York, where the principal business office of the defendant was situated, and the defendant contends that the statute contains no such requirement.

Section 37 of the act under which this suit is prosecuted contains these provisions: “ In limited liability companies all the stockholders shall be severally individually liable to the creditors of the company in which they are stockholders, to an amount equal to the-amount of stock held by them respectively, for all debts and contracts made by such company, until the whole amount of capital stock fixed and limited by such company has been paid in, and a certificate thereof has been made and recorded as hereinafter prescribed. * * *

“ The directors of every such company, within thirty days after the payment of the last installment of the capital stock, shall make a certificate stating the amount of the capital so paid in, which certificate shall be signed and sworn to by the president and a majority of the directors, and they shall, within the said thirty days, record the same in the office of the Secretary of State and of the county in which the principal business office of such corporation is situated.”

It is now the contention of the defendant that this statute is satis

That question is to be settled by a construction of tbe statute according to a few familiar rules, and the fundamental rule for tbe interpretation of statutes is to ascertain tbe intention of tbe Legislature.

It is pver of paramount importance to ascertain tbe purposes of tbe enactment, because tbe courts may interpret imperfect language in a statute so as to carry out wbat appears to be the general policy of tbe law. (McKuskie v. Hendrickson, 128 N. Y. 555 .)

“ Tbe legislative intent must govern even where such construction seems to run counter to tbe letter of tbe lawn” (Bixby v. Mayor, 61 Hun, 490 .)

That construction must be adopted which will effectuate as far as possible tbe intent ’of tbe framers of tbe statute, and obviate the anticipated evils which were tbe occasion thereof. (Tonnele v. Hall, 4 N. Y. 140 .)

It is, obvious from tbe reading of this statute that it does not perfectly express tbe intention of the lawmakers, which evidently was to require tbe recording of tbe certificate in two places, one of which was the office of tbe Secretary of State; the other was some office in the county in which tbe principal business office of the corporation was situated.

Tbe question is, wbat office in tbe county was intended ? There is usually but one office in tbe counties of this State where papers can be legally recorded and filed, and that is the office of tbe county clerk. But few counties in this State have a register’s office, and this law must have a general application.

As, therefore, we reach tbe conclusion that the statute requires the certificate to be recorded in some office in the county, and as there is no county office in all tbe counties of tbe State where the same can be recorded except tbe office of the county clerk, it seems to follow that the Legislature intend to provide for the recording of tbe certificate in tbe office of tbe county clerk.

It is a significant fact in aid of this interpretation that this statute in several places mentions the “ office of tbe Secretary of State and of the clerk of tbe county in which the principal business office of such corporation is situated” conjunctively, as the offices in which various papers are to be filed.

Cullen, J., concurred; Brown, P. J., dissenting.

Judgment affirmed, with costs, with leave to defendant to answer on payment of costs.