Andrews v. Murray , 9 Abb. Pr. 8 ( 1859 )

Beady, J.

The complaint, upon examination, will be found to contain enough to constitute a cause of action. The certificate which was filed on the 25th of April, 1853, provided that the trustees of the company should consist of three persons, and named them as the persons who should manage the concerns of the company for the first year. The plaintiff was one of the persons so named. It is alleged in the complaint that he accepted the office of trustee, and entered upon and continued to discharge the duties thereof until the 4th of April, 1854, when three persons, who are also named, were elected trustees to manage the-business of the company for the ensuing year. This is not stating the fact directly that the plaintiff had ceased to act as a trustee, but it is a statement of facts which admits of no other conclusion, and is clearly sufficient. The plaintiff’s term expired by limitation (act of 1848, §§ 1,2,3), and upon the election alleged he ceased to be a trustee. This view disposes of the first objection, urged on the demurrer.

The complaint also alleges that the report—which is required by section 12 of the act, supra, to be annually made, and within twenty days from the first day of January in each year—was not made within twenty days from the first day of January, 1855, or at any time since, showing the amount of capital paid in at that period, or at any period subsequent thereto; and this, though it is an indefinite way of stating the fact, is substantially an allegation that no such report was made within twenty days from the first of January, 1858. I am led to comment on this feature of the complaint, because I think that if the action were predicated on the omission to file the report required within the twenty days from the first of January, 1855, this action could not be maintained, inasmuch as the judgment was not recovered, and the debt did not exist until April 6,1851. If the complaint was demurrable because indefinite, I might feel it to be my duty to give judgment for the defendant; but, such not being the law, it is necessary to determine whether, assuming all the facts alleged to be true, the plaintiff is entitled to recover.

Applying this rule, then, and it appearing that no report was filed within twenty days from the 1st of January, 1858, the only question remaining to be disposed of is, whether a judgment for

costs is a debt within the meaning of section 12 of the act of 1848 mentioned. The legal acceptation of debt is a sum of money due by certain and express agreement. (Jacobs' Law Dic.; 3 Blackst. Com., 154; Denny a. Manufacturing Company, 2 Hill, 233.) It is also said by Jacobs, under “debt,” that “whatever the laws order any one to pay, that becomes instantly a debt, which he hath beforehand contracted to discharge ;” and I doubt not that a judgment against the Rahway Steam Brickworks Company for costs is a debt existing against them within the meaning of the section referred to. The statute embraces debts existing, and all that shall be made. (See Garrison a. Howe, 3 E. P. Smith's (17 N. Y.) R., 458.)

I am of opinion, therefore, that judgment must be given for the plaintiffs on the demurrer, with liberty, however, to the defendants to answer in twenty days, on payment of the costs of the issue of law.

Order accordingly.