
    SUPREME COURT.
    Thaddeus Hyatt et al. agt. John Roach.
    
      New York Special Term,
    
      November, 1876.
    
      Reference to enforce a penal obligation cannot be ordered.
    
    A'reference cannot be ordered, although a long account is involved, where the action is against a trustee of a corporation organized under the “manufacturing and mining law” of 1848, upon his liability under section 12 of thp i law, for the failure of the corporation to file its annual report.
    Such an action is not upon contract but is brought to recover a penalty. A compulsory reference cannot be ordered, although a long account is involved, where the action is brought to enforce a penal obligation.
    Defendant was sued on his liability as trustee of a corporation, under section 12 of the “ manufacturing and mining law” (chap. 40, Laws" of 1848).
    It was admitted, by the answer, that defendant was such trustee, and'that no report has been filed, as required by said section.
    The defense is a general denial.
    1 Plaintiff moved for a compulsory reference, on the pleadings, and on an affidavit that the debt incurred by the corporation was for labor and materials, and that the proof would involve a long account of more than thirty items.
    
      Ambrose Monell, for plaintiffs and motion.
    
      Geo. W. Van Siclen, for defendant and opposed.
   Lawrence, J.

— The action is brought to recover a penalty for neglect to file the annual report under the twelfth section of chapter forty (Lams of 1848). It is not upon contract (Merchants' Bank agt. Bliss, 35 N. Y., 412). The penalty imposed by that section is, that upon failure to file such report the trustees of the company shall, jointly and severally, be liable for all the debts of the company then existing, &c.

The character of the action is determined by the complaint (Welsh agt. Darragh, 52 N. Y., 590). An inspection of the complaint shows that it is not upon contract, but is brought to enforce a penal obligation of the defendant, under the statute, in his capacity as trustee.

Motion for reference denied, with costs.  