Handy v. Draper

Gilbert, J.: There is no occasion that I can discover for departing in this-case from the settled and salutary rule for the interpretation of statutes, namely : that an act is to be construed according to the ordinary and grammatical sense of its language, and that a proviso which on the face'of the act is not inconsistent with the other enactments therein, is not to be limited or enlarged upon any supposition respecting its policy or intention. The intention of the Legislature governs all rules of construction, but when the language used in a statute is precise and unambiguous, it best declares such intention. (Johnson v. H. R. R. R. Co., 49 N. Y., 462.) Section 10 of the general act for the incorporation of manufacturing, &c., companies (eh. 40 of 1848), imposes an absolute liability upon stockholders, until the capital of the company shall have been paid in. The reason of this is obvious. The act permits the company to exercise its corporate ¡lowers when its capital stock has been subscribed merely, but requires the payments of its capital stock one-half in one year, and one-half in two years. Hence, section 10 was designed to afford to creditors of the corporation the security of the personal liability of stockholders, as a substitute for capital paid in. Section 24 of the act operates as a proviso appended to section 10, and must be read accordingly. The ordinary and grammatical sense of the language of that section is plain. It does not make the liability imposed by section 10 dependent upon the recovery of a judgment 1 against the corporation and the return of an execution thereon. Such a qualification would have been incompatible with the intention of the Legislature manifested in the tenth and other sections of the act, namely : to provide a present means of enforcing payment of the debts of the corporation equivalent in some degree at least to that which would have existed, if the stockholders had done that which stockholders generally are required to do, namely: paid in their subscriptions to the capital. As an additional security to creditors, power was given to the corporation to forfeit the stock [259] subscribed iu default of payment of subscription thereto. Taking all these provisions together, it seems to me quite apparent that the Legislature intended to make the liability of stockholders a primary one, and enforceable immediately. What the reason was for requiring a suit to be commenced against the corporation it is difficult to say, and it would do no good to conjecture. It would be equally difficult to imagine why a remedy, evidently intended to be as direct and speedy as that against the corporation, should be frustrated by construction. It is an honest and just provision that stockholders who have not paid in their subscription should be ■liable for corporate debts within the limitation prescribed. But to make the remedy to enforce such liability dependent upon the inability of the creditor to obtain payment from the corporation would greatly impair its efficacy, and in cases where the corporation had become insolvent would require the creditor to prosecute a useless, and expensive suit. The judgment would not be even prima, facie evidence of the debt iu his action against the stockholder. Nor can any good reason be given why a litigation with the corporation should be forced upon the creditor rather than the stockholder. If the corporation be solvent, I perceive no reason why the stockholder should not pay and then have recourse to the corporation. That rule governs the common relation of principal and surety. If the corporation be insolvent, it is by no means certain that either the creditor or the stockholder would be benefited by obtaining a judgment against it. Without pursuing the subject further, it is enough .to say that the condition, which suspends the liability imposed by the act until after the return of an execution against the company, applies only to persons who have ceased to be stockholders. The case of Lindsley v. Simonds (2 Abb. Pr., N. S., 69), is a decision at Special Term, and it must be deemed overruled by the case of Shellington v. Howland, at General Term (67 Barb., 14). The last case was affirmed by the Court of Appeals in 53 N. Y., 371, but without a determination of the point here discussed. The judgment must be reversed, and a new trial granted, with costs to abide the event. [260] Present — Barnard, P. J., Gilbert and Dykman, JJ. Judgment reversed, and new trial granted, costs to abide event.