77 A.D. 65 | N.Y. App. Div. | 1902
The plaintiff sued to enforce against the defendant the statutory liability of a director of a corporation for the non-filing of an annual report in January, 1900. The allegation of the complaint is that the defendant, from May to November of the year 1900, was a director and president of the corporation, and that the plaintiff in July, 1900, was employed by that corporation to render certain services to it, and that he was wrongfully discharged and suffered damages by reason of such discharge. The defendant admits that he was a director and president of the corporation from May to November, 1900, and that no report was filed of the affairs of the company in 1900. The plaintiff did not charge specifically that the corporation was in existence on the 1st of January, 1900, and upon the trial he was allowed to amend his complaint by alleging incorporation prior to January 1, 1900, and the defendant was allowed to amend his answer by denying such incorporation prior to January 1, 1900.
It appeared in evidence that a certificate of incorporation was filed with the Secretary of State of the State of New York on the 21st of December, 1899, but no certificate was filed in the office of the county clerk of the county of New York, which was the place at which the corporate business was to be carried on. The incorporation, therefore, was incomplete. Thereupon the plaintiff undertook to prove that a de faeto corporation existed prior to Jan
The purpose for which the corporation was to be formed was “ to do a general publishing and printing business.” There is no evidence of any business act done by the corporation prior to January 1, 1900, in furtherance of that purpose. All that was done at the meeting of the board of directors was preliminary to beginning business. An organization of the corporation was effected and the purpose to do business was indicated, but there is no proof to show that the thousand dollars was ever paid to Donnell or the shares of stock issued to him, or that any executed contract was made with him or any one else. Hor is there one word of proof of any business transaction being had by the corporation during the year 1899. There was merely preparation for business and nothing more. That it did not begin to do business until March, 1900, is affirmatively shown in the testimony of Brooks, the vice-president.
To make proof of the existence of a de facto corporation, it is necessary to show not only that there is a law under which the corporation might be organized and an attempt to organize it, but that corporate powers have been exercised. That is, that the corpora
We are of the opinion in this case that there was no user prior to the 1st of January, 1900; that a de facto corporation did not exist prior to that date, and, hence, the provisions of the statute requiring the tiling of an annual report, which provisions are highly penal in their nature, are not applicable in this case and that the complaint was properly dismissed.
The judgment appealed from should be affirmed, with costs.
Van Brunt, P. J., Ingraham, Hatch and Laughlin, JJ., concurred.
Judgment affirmed, with costs.