Kirkland v. Kille
| Decision Date | 16 June 1885 |
| Citation | 2 N.E. 36,99 N.Y. 390 |
| Parties | KIRKLAND v. KILLE, impleaded, etc. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Mr. Hubbard, for defendant.
Hand & Sergeant, for plaintiff.
The plaintiff proved that the bonds in question were part of a series of first mortgage bonds issued by the Globe Smelting Company, and authorized by its trustees for the sole purpose ‘of borrowing money in order to successfully conduct the business for which it was incorporated.’ It appeared that the bonds were, to the plaintiff's knowledge, diverted from the purpose for which they were intended, and for that reason the court below denied a recovery according to the prayer of the complaint, but, against the objection of the defendant, directed a verdict in favor of the plaintiff for $1,500 and interest. Both parties appealed to the general term; the plaintiff, because he was not permitted to recover according to his claim, and the defendant, because the complaint was not dismissed. We agree with the courts below so far as they went against the plaintiff, and, as the case is now presented, discover no ground on which even his partial success can be secured.
The complaint states a single cause of action,-a debt due from the company to the plaintiff as holder and owner of the bonds. He took part in their creation, and, however honestly conceived, they appear to have been unavailing in any legitimate business of the corporation, and serviceable thus far only as a pretext for subjecting its trustees to a penalty imposed by statute (Laws 1848, c. 40, § 12) for the benefit of creditors whose debts, fairly contracted, were enforceable against the company.
The recovery is placed, not upon the debt named in the complaint, but upon an alleged indebtedness of the company for the plaintiff's salary as its president. The evidence disclosed that $3,000 of the bonds were turned out to him in payment, and to the extent of that salary the trial court held the defendant liable to the plaintiff. The defendant was not brought into court to answer such a claim. Concerning it there was no allegation, and it may well be that injustice has been done by its allowance. Code, § 1207; Chemical Nat. Bank v. Kohner, 85 N. Y. 189;Neudecker v. Kohlberg, 81 N. Y. 296;Volkening v. De Graaf, Id. 268; Harris v. Tumbridge, 83 N. Y. 92. But I do not need to go into that question. The circumstances upon another trial, if one is had, may be different, and now for other reasons the defendant's appeal must prevail. Even if the plaintiff is regarded as a creditor having a valid debt against the corporation, he has failed to bring the case within the statute upon which he relies, and by which it is enacted ‘that every such company shall, annually, within twenty days from the first day of January, make a report, which shall be published'in the place ‘where the business of the company is carried on, * * * and filed in the office of the clerk of the county where the business of the company shall be carried on.’ Nor is it necessary to discuss with any minuteness the cases which have given construction to any of its provisions. They were referred to with much detail in Bruce v. Platt, 80 N. Y. 379, and result in this: that when the condition of the company is such that the end and object for which it was formed are destroyed, and there is neither an ability nor intention on its part at any time to further prosecute its business, it is no longer required to make the report mentioned in that section. In other words, when these events happen, it ceases to be a company ‘carrying on business,’ and the direction of the statute has no application. This proposition was presented to the trial court as ground for dismissing the complaint, and it was error to disregard it. The request was justified by the evidence.
Although formed in April, 1874, the company seems at no time to have had existence except in contemplation of law. Its organization was avowedly for the purpose ‘of carrying on a mining, smelting, and metallurgical business, to accumulate, conduct, and supply water for mining purposes.’ Its capital was fixed at $500,000, but none was paid in nor subscribed. The whole was transferred in payment for minig property, smelting-works, water-works, and real estate once owned by the ‘Ingot Mining Company,’ but it became extinct, and was at this time in the hands of one Jones. He received the entire stock of the new company, and deeded these things to it. The plaintiff and his son were active projectors of the enterprise; one or the other, as evidence might be credited, receiving under previous arrangement a large amount of these first mortgage bonds of the new company for services in getting together, as one testified, ‘five or six reputable and respectable gentlemen who would file a...
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Chesley v. Soo Lignite Coal Company
... ... Young, 95 N.Y. 428; Chase v. Curtis, 113 U.S ... 452, 28 L.Ed. 1038; Heacock v. Sherman, 14 Wend. 58; ... Bruce v. Platt, 80 N.Y. 379; Kirkland" v ... Kille, 99 N.Y. 390; Commonwealth v. Biddle, 21 A. 134 ... Ball, ... Watson, Young & Hardy, for respondent ... \xC2" ... ...
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Moag v. State
... ... It could easily occur, as suggested by ... counsel, that a report would be made after a bank had ceased ... to do business. Kirkland v. Kille [1885], 99 N.Y ... 390, 2 N.E. 36.' ... While ... in the above case the court was passing upon the charge, what ... ...
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State v. Trook
... ... It ... could easily occur, as suggested by counsel, that a report ... would be made after a bank had ceased to do business ... Kirkland v. Kille (1885), 99 N.Y. 390, 2 ... It is ... further contended that the affidavit does not allege that the ... appellee knew at ... ...
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State v. Trook
...made. It could easily occur, as suggested by counsel, that a report would be made after a bank had ceased to do business. Kirkland v. Kille, 99 N. Y. 390, 2 N. E. 36. It is further contended that the affidavit does not allege that the appellee knew at the time charged that the person taking......