Bank of California v. Collins

Beady, J.: This action was commenced by a creditor of the La Abra Silver Mining Company, a corporation created under the laws of this .State, against trustees who failed to publish an annual report as required by law. During. its pendency one of - the defendants, George C. Collins, died, and on motion for that purpose an order was made at Special Term reviving the action and severing it so that it might proceed against his executor. The executor appeals. The action is for a penalty. The provisions of the statute by which it is authorized appear to be severely punitive, imposed on grounds of public policy for the protection of creditors and the prevention of frauds upon the public in respect to the financial condition of such corporations. (Per Leonard, J., in Merchants’ Bank v. Bliss, 35 N. Y., 416.) It was also said in that case that it was not necessary that the creditor should have sustained any injury or damage by reason of a violation of the statute. It was sufficient that the party prosecuting the action had a claim when the violation of the law toot place. The action is therefore penal in character. (Dabney v. Stevens, 10 Abb. [N. S.], 39; Squires v. Brown, 22 How. Pr., 35; Vincent v. Sands, 33 Supr. Ct., 516; Boughton v. Otis, 29 Barb., 196; Estes v. Burns, 37 Supr. Ct., 1; Merchants’ Bank v. Bliss, supra; McHarg v. Eastman, 7 Robt., 137.) The personal liability is imposed by way of punishment for the transgression of omitting to make the report. (Per Johnson, J., Briggs v. Easterly, 62 Barb., 61.) Actions ex delicto did not survive at common law. (Hambly v. Trott, Cowp., 375.) The right in such cases is based on an injury ex maleficio from which the testator derived no advantage to himself, and this is the principle on which his personal representatives are held not answerable. (Lord MaNSEield, J.; see, also, Whitacres v. Onsley et al., Dyer, 332, a.; Martin v. Bradley, 1 Caines, 123; Franklin v. Low & Swartwout, 1 Johns., 396.) A penal action cannot be supported against an executor for a penalty forfeited by the tes [211] tator under a penal statute. (1 Chitty’s PL [6th Am. ed.], 103; Com. Dig., Admin., B, 15.) And whether this action be regarded as one arising ex deUeto (see Andrews v. Murray, 33 Barb., 354), or one dependent upon a penal statute, it does not survive at common law and cannot be maintained against the executor of Gr. C. Collins, deceased. It is supposed;, however, that the provisions of the Revised Statutes, which are as follows, make a change in the rules of the common law and give a right of action against the personal representative of the deceased wrong-doer: Section 1. For wrongs done to the property, rights or interests of another, for which an action might be maintained against the wrong-doer, such action may be brought by the person injured, or after his death, by his executors or administrators, against such wrong-doer, and after his death against his executors or administrators, in the same manner and with like effect in all respects, as actions founded upon contracts. Section 2. But the preceding sections shall not extend to actions for slander, for libel, or to actions of assault and battery, or false imprisonment, nor to actions on the case for injuries to the person of the plaintiff, or to the person of the testator or intestate of any executor or administrator. (2 Stat. at Large [Edms.], 467.) These provisions have been interpreted by a number of decisions, and it has been declared that the language contained in the second section makes the intention of the legislature manifest that all actions other than those designated in it shall survive. (Haight v. Hayt, 19 N. Y., 464, 468, 474; Byxbie v. Wood, 24 id., 607, 612; Sheldon v. Wood, 2 Bosw., 269, 278 ; Johnston v. Bennett, 5 Abb. [N. S.], 331.) But this construction relates to the class of wrongs done which are embraced within the terms of the first section; that is,' wrongs done to the property, rights or interests of another. This action is not to redress a wrong either to the property, rights or interests of the plaintiff. It is not necessary for its maintenance, as we have seen, that the creditor should have sustained any injury or damage by violation of the law out of which it springs. It has no relation to the actual loss or injury sustained by the party in whose favor the action is brought (Merchants' Bank v. Bliss, supra), but depends entirely upon the omission to file an annual report in accordance with the requisitions of the statutes relating thereto. [212] The omission had no relation to any right, property or interest of the plaintiff. It did not affect his rights, property or interests, which were all in existence when the omission occurred. It simply created for him another mode of enforcing’ his claim, another liability to which he could resort in case the original debtor failed to pay his claim. It was not a wrong done to his property, or rights or interests, as contradistinguished from those of any other citizen, whether such citizen had or had not a claim against the company. It was, in all its elements, only an act invoking a penalty for the violation of a duty to the public, and not to any private person ; a duty imposed solely and exclusively by statute for the genei’al welfare of the people of the State. The statute, therefore, providing for actions' which should survive, does not, either in its terms or spirit, embrace the plaintiff’s demand, and’if that be so, the action ceases, and the order appealed from was erroneously made, and should be reversed.