94 N.Y.S. 428 | N.Y. App. Div. | 1905
The question is whether the action, which was commenced July 25, 1902, was barred by a statute of limitation pleaded. The plaintiff became a judgtnent creditor of a domestic corporation in November, 1900, by recovery upon a corporation note which matured in 1899. In July, 1902, she both notified the defendants, who were directors, that she would hold them under the statute for failure to make and file an annual report in January, 1901, and began this action. It was stipulated at trial that the directors filed an annual report in 1900, but none thereafter.
If, as contended, the limitation of three years for the beginning of such an action, prescribed by section 34 of the Stock Corporation Law (Laws of 1892, chap. 688, added by Laws of 1899, chap. 354) was shortened to six months by chapter 354 of the Laws of 1901, the action is barred. For the said statute of 1901 became a law on April 16, 1901, and the period of six months expired by the terms ■of the statute six months from that day. Section 30 of the Stock Corporation Law (as amd. by Laws of 1897, chap. 384) prescribed an annual report, signed by a majority of the directors, and imposed the liability. Section 34 of said statute enacted a statute of limitation of three years upon such liability. In Staten Island M. R. R. Co. v. Hinchliffe (170 N. Y. 473) the court, per Werner, J., referring to this Stock Corporation Law and to these sections, say : “ Section 30 creates the liability for a failure to file the report. While section 34 does not in terms refer to foreign corporations, and simply uses the words 'director or officer of any stock corporation,’ it nevertheless regulates the enforcement of the liability created hy section 30, and the two sections should he read together.” (The italics are mine.) Chapter 354 of the Laws of 1901 provides : “ Section 1. The several
The learned counsel for the respondent insists that the amend-' ment shortening the limitation is unconstitutional (1) because it violates the Statutory Construction Law; (2) bec'ause it interferes with an existing property right, and (3) because the limitation in point of time is unreasonable.
(1) The section of the Statutory Construction Law (Laws of 1892, chap. 677) invoked is section 31, which reads as follows: “The repeal hereafter or by this chapter of any provision of a statute, which repeals any provision of a prior statute, does not revive such prior provision. The repeal hereafter or by this chapter of any provision of a statute, which amends a provision of a prior statute, leaves such prior provision in force unless the amendatory statute be a substantial re-enactment of the statute amended. The repeal of a statute or part thereof shall not affect or impair any act done or right accruing, accrued or acquired, or liability, penalty, forfeiture or punishment incurred prior to the time such repeal takes effect, but the same may be asserted, enforced, prosecuted or inflicted, as fully and to the same extent as if such repeal had not been effected, and all actions and proceedings, civil or criminal, commenced under or by virtue of any provision of a statute so repealed and pending immediately prior to the taking effect of such repeal may be prosecuted and defended to final effect in the same manner as they might if such provisions were not so repealed.” The Legislature of 189.2 could not fetter the Legislature of 1901 (Cooley.Const. Lim. [7th ed.] 174 et seg.), and I think that-the Statutory Construction Law is not an attempt at. so vain a thing. This statute is a rule of construction “ applicable when not inconsistent with the general object of the subsequent statute, or the context of the language construed, or other provision of the repealing law indicating a different intent ” (People v. England, 91 Hun, 152; McCann v. City of New York, 52 App. Div. 362; affd., 166 N. Y. 587), and by the exclusion stated, upon this ground.
The learned counsel for the respondent mainly relies upon Lancaster v. Knight (74 App. Div. 255) and McCann v. City of New York (supra). Lancaster sued a stockholder under section 54 of
(2) The amendment is not void because it interferes with an existing property right. (Victory Webb Printing Co. v. Beecher, 26 Hun, 48; S. C., 97 N.Y. 651; Bank of Metropolis v. Faber, supra, 204.; Breitung v. Lindauer, 37 Mich. 217, 230; Union Iron Co. v. Pierce, 4 Biss. 327, 333 et seq.) In the case in Him the General Term held that such recovery is for a penalty, citing authorities, and applied the rule that a penalty imposed by statute cannot be recovered after. Ijhe repeal of the statute, although incurred before, unless the repealing act reserved the . right of action. 'The judgment was affirmed upon these grounds by the Court of Appeals, with the citation of many authorities. The court in the case in Bissell (supra) cite the language of the court in State ex rel. Thomas v. Youmans (5 Ind. 280): “ It is true (that) if a party under. a prior statute has acquired a vested interest, its subsequent repeal would not affect his rights; but that principle is not applicable to the case at bar, because in a penalty
Moreover, this legislation affects not the right but the remedy, and, therefore, is not inhibited provided a reasonable time, “ taking into consideration the nature of the case,” is allowed for bringing an action after the statute becomes a law and before the bar of the statute can be raised. (Gilbert v. Ackerman, 159 N. Y. 118. See, too, Terry v. Anderson, 95 U. S. 628; People v. Turner, 117 N. Y. 227; S. C., sub nom. Turner v. New York, 168 U. S. 90.)
(3) I think that the time is not unreasonable. In Terry v. Anderson (supra) the court, per Waite, Ch. J., say: “Of that the Legislature is primarily the judge; and we cannot overrule the decision of that department of the government, unless a palpable error has been committed.” In Rexford v. Knight (11 N. Y. 308) the court, per Johnson, J., say: “ The provisions of this act, which allowed a year after its passage for the making of claims, do not come up to the unreasonableness which will render such a law void. To do that, a court must, I think, be able to say, that no substantial opportunity is afforded to the party affected to assert his rights after the passage of the law; that the unmistakable purpose and effect of the law is to cut off the right of the party, and not merely to limit the time in which he may begin to enforce it.” Of course there is no fast rule for the test of reasonableness. In Parmenter v. State (135 N. Y. 154) it is said that the “ question of what is a reasonable time must be answered in.view of all the facts surrounding the passage of the act and of which the court would take judicial notice.”
In'the first place this right of action is in the nature of a penalty. It originated in and is regulated by statute, and hence the Legislature was dealing with its creature and not with the common law. As it had given, so it could take away such cause of action, and, therefore, it was natural that from time to time it should change, amend or regulate the statutes. Further, at this period or shortly before existing statutes of general application like unto this had been revised and shaped into general laws, which thereafter were more or less changed and amended for one reason or another, so that any change in this statute was ascertained readily by examination of legislation affecting general laws. Again, there was then
I am of opinion that there is no ground to justify a judicial overruling of a determination, primarily the right, of an independent branch of government, on the ground of “ its palpable error ” or its occult purpose “ to cut off the right ” of action, not to limit it. I cite several cases which, although not direct precedents, indicate the trend of the courts in passing upon such questions. (Wheeler v. Jackson, 41 Hun, 410, 414; S. C., 137 U. S. 245, 255; Turner v. New York, 168 id. supra; Rexford v. Knight, supra; Adamson v. Davis, 47 Mo. 268; Osborne v. Lindstrom, 9 N. D. 1; 46 L.R.A. 715; Stine v. Bennett, 13 Minn. 153; Regina v. Leeds & Bradford R. Co., supra)
The judgment must be reversed, and a new trial be granted, costs to abide the final award of costs.
Hirsciibeeg, P. J., Bartlett, Woodward and Miller, JJ., concurred.
Judgment reversed and new trial granted, costs to abide the final award of costs.
Matter of Estate of Prime (136 N. Y. 347).— [Rep.