Shayne v. Evening Post Publishing Co.

McLaughlin, J.: This action was brought to recover damages alleged to have been Sustained by the publication of an article in a newspaper,, the New York Evening Post, published by the defendant. It was commenced on the 17th of March, 1899. It appeared upon the calendar May 15, 1900, when the counsel of the defendant called the attention of the court to the fact that the corporation had expired •on January 1, 1900, by limitation contained in its articles of incorporation. This fact seems to have been then conceded, and thereafter a motion was made to revive and continue the action against - the trustees of the defendant ■ at the time of its expiration. The motion was granted and the defendant and the trustees have appealed. We think the order must be reversed. Upon the dissolution of the corporation, the action abated and it could not thereafter be revived. This must be so, unless there be some statute to the contrary. The general rule is that in an action to recover damages for [428] personal injuries pending at the time of the death or dissolution of a defendant, the action abates and cannot be revived. (Matter of Yuengling Brewing Co., 24 App. Div. 223; National Bank v. Colby, 21 Wall. 615 ; Wade v. Kalbfleisch, 58 N. Y. 282; More v. Bennett, 65 Barb. 338.) We do not know of, and our attention has not been called to, a statute which takes the defendant out of’ the general rule. The defendant was incorporated in 1871 under chapter 40 of the* Laws of 1848, as amended by chapter 262 of the Laws of 1857. Section 19 of this chapter'provides that “ The Legislature may at. any time alter, amend or repeal this act, or may annul or repeal any incorporation formed or created under this act; but such amendment or repeal shall not, nor shall the dissolution of any such company take away or impair any remedy given against any such coi - poration, its stockholders or officers, for any liability which shall have been previously incurred.” The whole act, however, was. repealed by the General Corporation Law (Laws of 1890, chap. 563, as amd. by Laws of 1892, chap. 687), the saving clause of which (§ 35) provides that “ The repeal of a law or any part of it,, specified in the annexed schedule, shall not affect or impair any act done, or right accruing, accrued or acquired, or liability, penalty, forfeiture or punishment incurred prior to May 1, 1891, under or by virtue of any law so repealed.” This action, as before indicated, was commenced in March, 1899,. to recover damages for the publication of an article in February, 1899. The plaintiff’s right to .recover, as well as the defendant’s liability to respond in damages,, of course does not come within the saving clause, inasmuch as it did not accrue prior to May 1, 1891,. nor does section 36 aid the defendant. That section provides, among-other things, that the. provisions of the General Corporation Law, so far as they are substantially the same as those of laws existing on April 30, 1891, shall be construed as a continuation of such laws, modified or amended according to the language employed, and not as new enactments. But there is no provision in the- General Corporation Law similar to the. pro vision in the act under which’.the-defendant was incorporated (Act of 1848 and amendments), permitting the action to be revived and continued in case of dissolution. This seems to be conceded by plaintiff’s counsel, because in the brief’ [429] filed by him he says that “ this corporation formed under the Act of 1848 is to be treated, for the purposes of this motion, as if formed under the Business Corporation Law.” Manifestly, this cannot be ■so. The Business Corporations Law (Laws of 1890, chap. 567, as amd. by Laws of 1892, chap. 691) does not apply either directly or inf eren tially to the defendant, The Evening Post Publishing Company. That act provides how a corporation may be formed, or how an existing corporation organized under other acts may acquire the benefit of it by reorganizing under it. But the defendant was not incorporated under this act, and never took any proceedings to come within its terms, and, therefore, it can no more be claimed that that act applies than it could that the Business Act (Laws of 1875, chap. ■611) applies. (Matter of Muengling Brewing Co., supra.) The case of Marstaller v. Mills (143 N. Y. 398) is not in point. The cause of action there was to recover damages for the loss of services of. the plaintiff’s son, and the court held that the action did not ábate. It there appeared that the corporation was organized under the provisions of the act of 1875, and came within the provisions of section 5, chapter 691, Laws of 1892, amending section 6, chapter' 567, Laws of 1890, and for that reason, inasmuch as it involved a wrong done to the property rights of the plaintiff, it could, by express provision of that act, be revived and continued by the executor. Here chapter 611 of the Laws of 1875 does not apply to the defendant, nor does the Business Corporations Law apply, and the only law which is applicable is, as already indicated, the General Corporation Law, and there is no provision in that law which permits an action against a defunct corporation to be revived and continued against the trustees, as permitted in the order appealed from. It, therefore, follows that the order appealed' from must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. Van Brunt, P. J., and Ingraham, J., concurred; O’Brien and Hatch, JJ., dissented.