Boutwell v. Townsend , 37 Barb. 205 ( 1860 )

By the Court,

Hogeboom, J.

Tire 10th section of the general rail road act of 1850, (Laws of 1850, p. 215,) in substance provides that “ all the stockholders of every such company shall be jointly and severally liable for all the debts due or owing to any of its laborers and servants, for services performed for such corporation,” to the extent of the amount remaining due on an execution against the corporation for the debt, and returned unsatisfied in whole or in part. This action is brought under that section, and it is not denied that the allegations xin the complaint are sufficient to charge the defendant, except that relating to the nature of the indebtedness. As the defendant can only be made liable under the provisions of the statute, it is essential that the complaint should expressly show that the cause of action prosecuted is due or owing to a laborer or servant of the corporation, for services performed for such corporation. The allegation is that the corporation was indebted to Shine & Scanlin (under whom the plaintiff "claims) for work, labor and services performed by them, who were copartners doing the business of contractors with the Albany Northern Bail Boad Company, for the construction of some.part of its rail road track. These may be said to be “ services performed for the corporation,” but not necessarily by “ any of its laborers or servants,” unless the term “laborers and servants” necessarily includes every class of persons who can perform services for the corporation. It is obvious from other parts of the act that this is not so ; for if it had been, it would not have been necessary in any way to designate the class of persons, but to have said, simply, “ debts due and owing for services performed for such corporation.” Again; the 12th section distinguishes between contractors for the construction of a rail road, and laborers performing the work. The obvious intent' and policy of this and other similar acts is to make provision for. those who are the workmen and operatives on the road, and who are usually persons of small pecuniary means, not able to lose their daily earnings, and not compel them to rely solely either upon the pecuniary responsibility of contractors, or the corporation itself. (See act amending the charter of the Hudson River Rail Road Company, Laws of 1850, p. 14, ch. 9, § 5 ; Warner v. The Hudson River Rail Road Company, 5 How. Pr. Rep. 454; Millered v. Lake Ontario, Auburn and New York Rail Road Company, 9 id. 238; Kent v. The New York Central Rail Road Co., 2 Kern. 630 ; Smith v. The New York and Harlem Rail Road Co., 19 N. Y. Rep. 132; Young v. N. York Central Rail Road Company, 30 Barb. 229.) The complaint fails to show that Shine & Scanlin belonged to the class of " laborers and serv- • ants” before referred to. And it is quite probable from the language of the complaint that they were only." contractors,” whose debts are not protected by the language in question. Nor is this merely a matter of indefiniteness or uncertainty, which should be corrected by motion. It is a matter of substance, going to the very foundation of the action, and therefore subject to demurrer.

[Albany General Term, May 7, 1860.

Having no doubt on this part of the case, I do not deem it necessary to discuss the other questions argued by counsel.

The order of the special term must be reversed with costs, and there must be judgment for the defendant on the demurrer, with leave to the plaintiff to amend his complaint on payment of costs.

Wright, Eogeboom and Peckham, Justices.]