Christie v. Bowne

BBOWN, P. J. The plaintiff brought this action as a creditor of the corporation known as the Néw. York Advertising Agency, Limited, to recover his debt from the defendant, who was a stock [391] holder in said corporation, on the ground of the failure to file in the office of the county cleric the certificate of the full payment of the capital stock of said corporation, as required by section 37, c. 611, Laws 1875, under which statute the corporation was organized. The question discussed by the appellant requires only a brief notice. No exception presents the question as to the proper construction of the peculiar language of section 37. That section requires the certificate to be filed “in the office of the secretary of state and of the county in which the principal business office of such corporation is situated.” It was decided by a very recent decision of this general term that the language quoted required the certificate to be filed with the county clerk. Jones v. Publishing Co. (Sup.) 30 N. Y. Supp. 335. The repeal of the act of 1875 by chapter 687, Laws 1892, does not affect the plaintiff’s cause of action. It was preserved by the saving clause of the repealing act (section 35). The exception to the admission of the evidence of Mr. Seaver that the plaintiff was a competent bookkeeper is not available on this appeal. The question of plaintiff’s competency was not an issue at the trial. It was withdrawn from the consideration of the jury by the court in its charge, without objection by the defendant, and no request was made to have that question submitted to the jury. The verdict is sustained by the evidence, and the judgment and order are affirmed, with costs. All concur.