Statement of case. made and given to the county clerk for record, the duty imposed upon the stockholders is performed, and they are not liable because of an omis, sion to record, which is wholly the fault of that officer. The R. I. Co. was organized in 1868 with a capital of $200,000, which was paid in, but no certificate thereof was made and recorded. In 1869 the trustees passed a resolution increasing the stock to $300,000, and at a meeting of the stockholders, by a vote of two-thirds, the increase was ratified; no notice of such meeting was published, nor was a certificate of its proceedings made and filed, as required by said act (§§ 21, 22). The increased stock was issued, but not fully paid in; holders thereof voted at stockholders' meetings, shared in dividends, and in all respects were treated and acted as holders of legal stock. In 1873 a certificate was made by the proper officers and delivered to the county clerk for record, which stated the capital to be $300,000, and that it was actually paid in. In an action brought by a creditor to enforce the liability imposed upon stockholders because of failure to pay in the capital stock, held, that the certificate was sufficient to exonerate the holders of the original stock, but was not conclusive, as against the creditors, that the increased stock had been paid in; and that the holders thereof were estopped from questioning the validity of the increase; also that, as the indebtedness provable under said act (§ 24) was more than the amount of the increase, such holders were liable to the extent of the par value of the increased stock. The company being indebted to J., a subscriber for original stock, for work in constructing its furnaces, the amount of his account was applied as a payment upon his stock. Held, that this was a payment in money within the meaning of the act (§ 14). Among the claims presented was one in favor of a bank which had discounted a note, dated October 2, 1876, payable in four months. Upon maturity it was renewed for four months, and again renewed for five months. Suit was brought against the company on November 3, 1877. Held, that this was a debt to be paid within one year from the time it was contracted, and that suit was brought within one year after it became due, within the meaning of the provision of said act (§ 22), exempting stockholders from liability for claims not contracted to be paid, or not sued within the year; and that the claim was properly allowed. Defendants M. and T. were trustees of said company for the years of 875 and 1876. No annual reports for those years were filed as required by said act. (§ 12.) A creditor, after judgment against the company in an action brought more than a year after his claim fell due, sued said trustees because of the omission to comply with such requirement, and recovered judgment for the amount of his claim, which they paid. They claimed to be allowed the amount so paid, in reduction of their liability. Held, that said claim was properly rejected. Said defendants were also sued by another creditor, because of such omission. They settled the action before judgment, and took a transfer of the claim, which consisted of notes of the company, dated October 1, Statement of case. 1875, payable on demand. No action was brought against the company thereon until October 27, 1877. This claim they also asked to have allowed. Held, that it was properly rejected. McV., a stockholder, died before any of the debts allowed herein were contracted; the stock went into the hands of his executors, who advertised for claims against the estate. This publication was commenced within a month after they qualified. After the expiration of the time fixed by the advertisement they distributed all but a small portion, without reserving sufficient to meet any liability upon the stock. The estate was amply sufficient to meet all liabilities. Held, that the executors were personally liable for any deficiency after application of the residue in their hands. (Argued February 1, 1884; decided March 18, 1884.) THESE are appeals by fifteen of the defendants, who were stockholders of the Rochester Iron Manufacturing Company, against whom separate judgments were entered upon an order of the General Term of the Supreme Court, in the third judicial department, made December 16, 1882, which affirined judgments against said defendants entered upon the report of a referee, and also affirmed an interlocutory judgment. This action was brought by plaintiff as a creditor of said company, which was a corporation, organized under the General Manufacturing Act, on his own behalf, and that of other creditors, against said company, its receiver and its stockholders, also against other creditors who had commenced actions against individual stockholders. The object of the action was to enforce the liability imposed upon stockholders by said act, because of an alleged failure to pay in the full amount of the capital stock. The said corporation was organized in 1868; its capital stock, as fixed in and by its articles of incorporation, was $200,000, all of which was paid in cash, save as hereinafter stated, but no certificate to that effect was made and recorded, as required by said act. In March, 1869, its directors passed a resolution increasing the stock to $300,000, and at a meeting of the stockholders held April 15, 1869, a resolution was passed by a vote of those holding more than two-thirds in amount of the original stock, ratifying the increase. SICKELS-VOL. L. 38 Statement of case. The said meeting, however, was not formally called, nor was a certificate of the increase of capital made and filed as prescribed by said act. Eighty-five shares of the original stock were issued in payment for lands purchased by the company, and two calls upon one hundred and forty shares of said stock, issued to one Jones, were paid by applying the same as so much payment upon a contract for the construction by him of furnaces for the company. The $100,000 additional stock was not fully paid in; it was all issued to stockholders who voted for the increase; its holders subsequently received dividends thereon, voted at stockholders' meetings, and in all respects were treated and acted as stockholders. A certificate was made by the proper officers January 13, 1873, stating that the stock of the corporation was $300,000, and that the whole amount thereof had been paid in. This certificate was filed in the office of the clerk of Monroe county on the day it was executed, but, as found by the referee, solely through the negligence of the clerk, was not recorded until June 22, 1880. The company became insolvent and a receiver was appointed in 1878. Upon the report of a referee finding substantially these facts an interlocutory judgment was entered, establishing the liability of the stockholders, staying the actions brought by the creditors defendants, and requiring the creditors to appear to establish their claims, etc., and, upon the report of the referee as to such claims, separate judgments were rendered against said stockholders. Among the claims presented to the referee was one in favor of the Bank of Hamilton for $10,000. This claim was upon a promissory note, dated October 2, 1876, payable four months from date. Upon maturity it was renewed for four months, and was again renewed for five months. Suit was brought upon said claim November 3, 1877; judgment perfected, and execution issued and returned unsatisfied. This claim was objected to on the ground that it was not to be paid within one year from the time it was contracted. It was allowed by the referee. Defendants Mudgett and Tillinghast were trustees of said Statement of case. company for the years 1875 and 1876. No annual reports for those years were made and filed by the officers of the company, as required by section 12 of said act. A creditor, after judgment against the company, in an action which was brought more than a year after his claim fell due, sued said trustees because of such omission, and obtained judgment for the amount of his claim, which they paid. Said trustees filed a petition as creditors under the interlocutory judgment, and claimed upon the hearing before the referee, that they were entitled to be allowed the amount so paid in reduction of their liability. The referee rejected the claim. Said defendants Mudgett and Tillinghast were also sued by another creditor, Eastwood, for the amount of his claim, because of failure to make and file said reports. They settled the action before judgment, and took an assignment of said claim. The claim so assigned consisted of notes made by the company October 1, 1875, payable on demand. No action was brought against the company until October 27, 1877. Said defendants also asked to be allowed the amount of said claim. It was rejected by the referee. David McVean, a stockholder in said company, died on April 28, 1876, before any of the creditors' claims in question in this action were contracted, holding shares both of the original and the increased stock. This stock went into the hands of his executors. They advertised for claims against the estate, but commenced the publication within one month after they qualified. After the expiration of the time fixed by the advertisement they distributed the testator's estate, save a small portion, without reserving sufficient to meet any liability upon the stock. The estate was ample to pay all liabilities, including that upon the stock. The referee held the executors personally liable for the deficiency after applying the residue in their hands. Further facts appear in the opinion. James Breck Perkins for Mudgett and others, appellants. The requirement of the statute as to the time of recording Statement of case. the certificate is directory under all settled rules. (Van Vleet v. Slauson, 45 Barb. 317; Juliand v. Rathbone, 39 id. 97; Wood v. Chapin, 13 N. Y. 509; People v. Supervisors, 34 id. 267, 272.) Giving the certificate to the clerk to record was all the act required. (Sutherland v. Olcott, 29 Hun, 161, 165.) If this certificate was wrong in stating the amount of the stock, or that it was full paid, the only remedy was under section 15 of the act imposing the penalty for a false certificate upon those making it. (Schenck v. Andrews, 57 N. Y. 133, 143; Bonnell v. Griswold, 80 id. 128; Dodge v. Potter, 18 Barb. 194; Neele v. Perryhill, 4 How. Pr. 16; Dikeman v. Pudchafer, 1 Abb. [N. S.] 33; Jordan v. Farnsworth, 15 Gray, 518; Gorham v. Simmons, 25 Minn. 87; Boyton v. Hatch, 47 N. Y. 228.) The receipt by Jones of the bill then due on the issue of the original stock was cash to the company. It was unnecessary to go through the form of exchanging checks. (Beach v. Smith, 30 N. Y. 116, 131.) No liability is imposed by statute for the non-payment of increased stock. (Laws of 1848, chap. 40, §§ 1-9, 20-23.) This act is severely penal and that it should be strictly construed. (Garrison v. How, 17 N. Y. 466; Chase v. Ford, 77 id. 1, 6, 8; Bonnell v. Griswold, 80 id. 128, 138; Wood v. Meeks, 7 Lea $100,000 was not issued [Tenn.], 40-49.) The additional in compliance with law, and was not stock at all. (Laws of 1848, chap. 40, §§ 20-23; Peters v. Lincoln, etc., Co., 12 Fed. Rep. 513; People v. Batchelor, 22 N. Y. 128, 134; Angel & Ames on Corporations, chap. 14, §1; Eaton v. Aspinwall, 19 N. Y. 119; Fuller v. Rowe, 57 id. 23; Central Sv'gs B'k v. Walker, 66 id. 424; De Witt v. Hastings, 8 J. & S. 463; Chubb v. Upton, 5 Otto, 66; Pullman v. Upton, 6 id. 328; Crow v. Easterly, 4 Lans. 513.) The elements on which to base an estoppel are lacking. (Crow v. Easterly, 4 Lans. 513, 522; Macedon Co. v. Lapham, 18 Barb. 312; Payne v. Burnham, 62 N. Y. 69; People v. Parker Vein Coal Co., 10 How. 543; Welland Canal Co. v. Hathaway, 8 Wend. 480; Lathrop v. Kneeland, 46 Barb. 432.) The certificate recorded, and stating the capital stock was fully paid, protected |