Statement of case.

the stockholders. (Steadman v. Eveleth, 6 Metc. 114, 123; Curtis v. Harlow, 12 id. 36; Schenck v. Andrews, 57 N. Y. 133.) The claims allowed are barred by the statute of limitations. (Phillips v. Therasson, 11 Hun, 141; Svgs B'k v. Walker, 66 N. Y. 42.) The defendant Mudgett was entitled to credit for $1,700 paid by him to the Rossie Iron Works. (Garrison v. Howe, 17 N. Y. 458, 463; B'k of Poughkeepsie v. Watson, 24 Wend. 473; Talmadge v. Fishkill Iron Co., 4 Barb. 382; Mathez v. Neidig, 72 N. Y. 100, 106-7; Agate v. Sands, 73 id. 620.)

Theodore Bacon for Ely and others, appellants. The General Term erred in allowing plaintiffs to make up a record containing eighteen several judgments of affirmance; as there was but one judgment appealed from there could be but one affirmance. (Webb v. Bulger, 4 Hill, 588; Tenbroeck v. Paige, 6 id. 267; Crim v. Cronkhite, 15 How. Pr. 250, 253; Johnson v. Farrell, 10 Abb. 384.) The liability of all stockholders was terminated upon the filing of the certificate of January, 1873. (Steuben Co. B'k v. Alberger, 78 N. Y. 252; 2 R. S. 681, §§ 1, 12; Bonnell v. Griswold, 80 N. Y. 128; Whitney Arms Co. v. Barlow, 68 id. 34.)

John Van Voorhis for Cole & Galusha, appellants. The statement of the certificate that the capital of $300,000 was all paid up is conclusive. (Steadman v. Eveleth, 6 Metc, 114; Curtis v. Harlow, 12 id. 36; Booth v. Campbell, 37 Md. 522; Pier v. Hanmore, 86 N. Y. 95; Bonnell v. Griswold, 80 id. 128; Chase v. Lord, 77 id. 1; Pier v. Hanmore, 86 id. 95; Schenck v. Andrews, 57 id. 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.) The cause of action being penal in its nature and in derogation of the common law, the statute should be construed strictly and not extended beyond the limits to which it is plainly carried by its provisions. (Gray v. Coffin,

Statement of case.

9 Cush. 199; Chase v. Lord, 77 N. Y. 1; Steadman v. Eveleth, 6 Metc. 114; Thompson on Liability of Stockholders, §§ 50-54; Garrison v. Howe, 17 N. Y. 458, 466; Cabre v. McCune, 26 Mo. 371; 1 Parsons on Contracts, 143; Bonnell v. Griswold, 80 N. Y. 128.) There is no individual liability of stockholders by reason of holding increased stock, to be found in the statute. (Laws of 1848, chap. 40, §§ 1-9, 20-23; Smith v. Brown, 13 Hun, 408; 80 N. Y. 560.) The increased stock not having been issued in compliance with the statute is not stock. (Brown v. Smith, 80 N. Y. 650; 13 Hun, 408, 413; Fuller v. Rowe, 57 N. Y. 23; Central S'v'gs Bank v. Waker, 66 id. 424.) The liability of stockholders for the debts of the corporation on account of the issue of increased stock cannot be established on the principle of estoppel. (Thompson's Liability of Stockholders, § 171; Crowe 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., 16 How. 543; Welland Canal Co. v. Hathaway, 8 Wend. 480; Lathrop v. Kneeland, 46 Barb. 432; Bigelow on Estoppel, 532, 431, 437; Dewitt v. Hastings, 8 J. & S. 463.) The original $200,000 of stock was fully paid in as required by the statute. (Beach v. Smith, 30 N. Y. 116, 131; People, ex rel. v. Vail, 2 Cow. 624; Dutchess Co. v. Davis, 14 Johns. 238; Chase v. Lord, 77 N. Y. 8, 10, 25; Dodge v. Potter, 18 Barb. 193; Dykeman v. Puckhafer, 1 Abb. [N. S.] 32; Bishop v. 13 Barb. 326, 330; Siminson v. Faliher, 25 Hun, 570, 573; People v. N. Y. C. R. R., 13 N. Y. 78, 82; Chase v. Lord, 77 id. 78.) The record of the certificate at length after the debts were contracted terminates all liability, if any, of the stockholders, then existing. (Chase v. Lord, 77 N. Y. 8; Bonnell v. Griswold, 80 id. 128; Booth v. Campbell, 37 Md. 525-7.) Where there is but one set of papers, one argument, and one judgment, the successful party is entitled to but one bill of costs, though the appellant appeared by different attorneys. (Everson v. Gehrman, 2 Abb. 413.)

Cook,

Satterlee & Yeoman for Judson, appellant. It devolved

Statement of case.

upon plaintiff to prove that the original stock was not all paid in before the certificate was recorded. (Bruce v. Driggs, 25 How. Pr. 71; Chase v. Lord, 77 N. Y. 1; Laws of 1853; chap. 333, § 2; Howell v. C. & C. R. R., 51 Barb. 378, 380; Beach v. Smith, 30 N. Y. 116, 131.) The certificate filed was conclusive in favor of the stockholders as to the fact that the $300,000 had been paid in full. (Steadman v. Eveleth, 6 Metc. 114; Curtis v. Harlow, 12 id. 3, 6; L. S. Iron Co. v. Drexel, 90 N. Y. 87.) There was no valid increased stock. (People v. Batchelor, 22 N. Y. 128, 134; Peters v. L. & N. W. R. R. Co., 12 Fed. Rep. 513; People v. P. V. & C. Co., 10 How. Pr. 543; Railway Co. v. Allerton, 18 Wall. 232; Lathrop v. Kneeland, 46 Barb. 432; M. & C. R. Co. v. Lapham, 18 id. 312; N. Y. & N. H. R. R. Co. v. Schuyler, 34 N. Y. 30, 44; Merchants' B'k v. N. Y. & N. H. R. R. Co., 13 id. 599; Thompson on Stockholders, § 115; De Witt v. Hastings, 8 J. & S. 463, 474-5; Eaton v. Aspinwall, 19 N. Y. 119; Mokalumne Hill M. Co. v. Woodbury, 14 Cal. 424, 426; Cuykendall v. Douglass, 19 Hun, 577.) The defendants are not estopped from denying the validity of the increased stock. (Bigelow on Estoppel, 532, 431, 437; Eaton v. Aspinwall, 19 N. Y. 119; Aspinwall v. Sacchi, 57 id. 331; Chubb v. Upton, 95 U. S. 667; Upton v. Hansbrough, 3 Biss. 417; Scovill v. Thayer, 105 U. S. 143; Lathrop v. Kneeland,, 46 Barb. 432, 438-9; Macedon v. Lapham, 18 id. 312, 317.) There is no liability under the statute after the original stock is paid in and a certificate recorded as required, although the increased stock is valid. (Chase v. Lord, 77 N. Y. 8; Bonnell v. Griswold, 80 id. 128.) This certificate, though false, was a certificate within the meaning of the statute. (Bonnell v. Griswold, 80 N. Y. 128, 137-8; Whitney Arms Co. v. Barlow, 68 id. 34, 38; Pier v. Hanmore, 86 id. 95.) The certificate was recorded within the meaning of the statute at the time the trustees deposited it in the office of the county clerk before any of the debts were contracted. (People, ex rel. v. Vail, 2 Cow. 624; Dutchess Co., etc. v. Davis, 14 Johns. 238; Chase v. Lord, 77 N. Y. 8, 10, 25; Dodge v. Potter, 18

Statement of case.

Barb. 193; Dykeman v. Puckhafer, 1 Abb. [N. S.] 32; Bishop v. Cook, 13 Barb. 326, 330; Siminson v. Faliher, 25 Hun, 570, 573; Sutherland v. Alcott, 29 id., 161; People v. N. Y. C. R. R., 13 N. Y. 78, 82; Chase v. Lord, 77 id. 78.) The record of the certificate at length after the debts were contracted terminates all liability, if any, of the stockholders then existing. (Chase v. Lord, 77 N. Y. 8; Bonnell v. Griswold, 80 id. 128; Booth, v. Campbell, 37 Md. 525–7.) The court had no power to allow an amendment to the complaint introducing a new cause of action, but only to insert "allegations material to the case." (Code of Civ. Pro., § 723; Reeder v. Sayers, 70 N. Y. 180, 190; Ford v. Ford, 35 How. 321; Hochstetter v. Isaacs, 44 id. 495-7; Barnes v. Quigley, 59 N. Y. 265; Miller v. Moore, 1 E. D. Smith, 740; Verplanck v. Mercantile, etc., Co.. 1 Edw. Ch. 46, 52.)

Edward C. James for respondents. The court under the notices of appeal can only review those matters which are subsequent to the interlocutory judgment, as that judgment is not referred to in them. (Code of Civil Pro., §§ 1301, 1316; 45 N. Y. Supr. Ct. 628; 24 Hun, 642; 27 id. 384; 5 Paige, 296; 4 Johns. 536; 8 Cow. 328; 90 N. Y. 546; 2 id. 500, 505.) A stockholder's personal liability for a debt of his company is neither penal nor quasi penal. It does not partake of the nature of punishment. It is not even imposed by statute, and is a contract obligation in every sense of the word. (Johnson v. Underhill, 52 N. Y. 203, 206-7; Constitution, art. 8, § 2; Corning v. McCullough, 1 N. Y. 47, 55; Story v. Furman, 25 id. 214, 222; Lowry v. Inman, 46 id. 125-126; Wiles v. Suydam, 64 id. 173; Briggs v. Waldron, 83 id. 582; Farnsworth v. Wood, 91 id. 308-314; Chase v. Lord, 77 id. 1, 33; 5 Hun, 210; 54 How. Pr. 213; 48 Conn. 9; Morawetz on Private Corporations, § 607; Terry v. Calnan, 13 So. Car. 220, 227; Hobart v. Johnston, 19 Blatchf. 359, 361; Farnsworth v. Wood, 91 N. Y. 308-314; Kincaid v. Dwinelle, 59 id. 548; Shellington v. Howland, 53 id. 376; Briggs v. Waldron, 83 id. 582,

Statement of case.

587; Thompson on Stockholders, § 34; Harger v. McCullough, 1 N. Y. 47; Corning v. McCullough, id. 47; Moss v. Averill, 10 id. 449, 459; Strong v. Furman, 25 id. 214, 222; Wiles v. Suydam, 64 id. 173, 176; Chase v. Lord, 77 id. 33; Aspinwall v. Sacchi, 57 id. 335.) The statute should be reasonably construed. (Morawetz on Priv. Corp., § 613; Johnson v. Underhill, 52 N. Y. 203, 207; Shellington v. Howland, 53 id. 371; Kincaid v. Dwinelle, 59 id. 548, 551, 4 Abb. N. C. 40, 42; Chase v. Lord, 77 N. Y. 1; Lowry v. Inman, 46 id. 126.) Upon the facts proved, as between the stockholders and creditors, the whole amount of the capital stock must be taken to be $300,000. (Scovill v. Thayer, 105 U. S. 143; Chubb v. Upton, 5 Otto, 665, 667-669; Pullman v. Upton, 6 id. 328, 329; Abbott v. Aspinwall, 26 Barb. 206, 207; McFarlane v. Triton Ins. Co., 4 Denio, 392, 396-7; Eaton v. Aspinwall, 19 N. Y. 119; B. & A. R. Co. v. Carey, 26 id. 175; Aspinwall v. Sacchi, 57 id. 331-338; Hyatt v. Esmond, 37 Barb. 606; Perkins v. Hatch, 4 Hun, 137; affirmed, 64 N. Y. 634; Davis v. French, 4 Hun, 292; Ruggles v. Brock, 6 id. 164; McCarthy v. Lavasche, 89 Ill. 270; Torbell v. Page, 24 id. 46.) Stockholders will be estopped by tacit acquiescence in the acts of the company, or of their officers or associates. (Kent v. Quicksilver Mining Co., 78 N. Y. 159; S. II. B. Co. v. E. H. B. M. Co., 90 id. 607, 613, 617; In re M. S. N. Co., 6 Jurist [N. S.], 975; Thompson on Stockholders, §§ 160-175; Morawetz on Priv. Corp., §§ 375, 598; In re Reciprocity B'k, 22 N. Y. 17, 18; Aspinwall v. Sacchi, 57 id. 338; Chubb v. Upton, 5 Otto, 665, 667-9; Mead v. Keeler, 24 Barb. 24, 25; Abbott v. Aspinwall, 26 id. 202; Ruggles v. Brock, 6 Hun, 164, 166; Wakefield v. Fargo, 90 N. Y. 214, 217; Thompson on Stockholders, §§ 407, 410, 414; Eaton v. Aspinwall, 3 Abb. Pr. 422; 19 N. Y. 121, 122; M. E. U. Church v. Pickett, 19 id. 482, 485-6; B. & A. R. Co. v. Cary, 26 id. 75, 77, 78; Mead v. Keeler, 24 Barb. 20, 24-25; Abbott v. Aspinwall, 26 id. 206-7; Upton v. Hansborough, 3 Bissell, 417; Chubb v. Upton, 5 Otto, 667; Curnen v. Mayor, 79 N. Y. 511.) The whole amount of capital stock was not paid in. (Laws SICKELS-VOL. L.

39