
    L. Victor Seydel, Appellant, v. The Corporation Liquidating Co., Respondent. The Same, Appellant, v. Peter J. McLean, Respondent.
    (Supreme Court, Appellate Term,
    March, 1905.)
    Stock Corporation Law — Section 53 as amended — Inspection of stock book'—Action for penalty — Pleading — Negativing exceptions — Motion for new trial.
    A complaint in an action under section 53 of the Stock Corporation Law, as amended in 1897, to recover the penalty therein provided for an alleged refusal to permit plaintiff, a stockholder of a foreign stock corporation, not a moneyed or railroad corporation, to inspect its stock'hook, required to be kept open daily during business hours for the inspection of stockholders and judgment creditors, which does not state that defendant is a “ stock ” corporation and is not a “ moneyed or railroad ” corporation, is fatally defective and the deficiencies are not such as can be cured by judgment.
    
      In such ease, the withdrawal of a demurrer to the complaint upon the ground of insufficiency, does not estop the defendant from raising the objection at the trial.
    A motion by plaintiff for a new trial, upon the ground of newly discovered evidence, will not be granted where such evidence could not cure a fatal defect in the complaint.
    Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, twelfth district, borough of Manhattan, in favor of the defendants in an action for penalties for refusing to allow the plaintiff an inspection of the stock book of the corporation, as provided by section 53 of the Stock Corporation Law.
    Dichman, Luckey & Schwartz (John J. Schwartz, of counsel), for appellant.
    Job E. Hedges (Louis Frankel, of counsel), for respondents.
   Scott, J.

These actions are prosecuted for the recovery of a statutory penalty, for an alleged failure to permit plaintiff to inspect the defendant corporation’s stock book pursuant to section 53 of the Stock Corporation Law of this State. Laws of 1892, chap. 688, as amd. by Laws of 1897, chap. 384. That section provides among other things, that every foreign stock corporation, having an office for the transaction of business in this State, except moneyed and railroad corporations, shall keep therein a book to be known as a stock book; that such book shall be open daily during business hours for the inspection of stockholders and judgment creditors, and that for any refusal to allow such book to be inspected such corporation, and the officer and agent so refusing shall each forfeit the sum of two hundred and fifty dollars to be recovered by the person to whom such refusal was made. The section, as will be seen, is highly penal and in order to recover under it a plaintiff must bring himself strictly within its terms. The only foreign corporations to which the act applies are those which are “ stock ” corporations, and which are not either moneyed or railroad ” corporations. The complaint in each of these actions was fatally defective in that, while it stated that the defendant corporation was a foreign corporation, it did not state that it was a “ stock ” corporation, and was not a “ moneyed or railroad ” corporation. The rule of pleading applicable to an action of this character is clearly stated in Rowell v. Janvrin, 151 N. Y. 60, 66, as follows: “In stating a cause of action arising upon a statute, it is an ancient rule that where an exception is incorporated in the body of the clause of a statute, he who pleads the cause ought to plead the exception * * *. The reason upon which this rule of pleading rests seems to be that when a party counts upon the enacting clause of a statute containing an exception, as the foundation of his action, he cannot logically state his case unless he negative the exception.” This rule was applied by the Appellate Division in the Fourth Department in an action founded upon an alleged violation of a provision of the General Health Law.' County of Steuben v. Wood, 24 App. Div. 442. In Gunst v. Goldstein, 30 Misc. Rep. 44, a complaint in an action for a penalty for a refusal to exhibit a stock book was held to be insufficient, because it failed to allege that the corporation was a “ stock ” corporation.

It follows that the complaints in the actions now under consideration were essentially defective and insufficient. The objection was one as to which the defendants were not confined to an objection by demurrer, but could be availed of at any time. The withdrawal of the demurrer did not, therefore, estop the defendants from raising the objection at the trial. They did so raise it at the opening of the trial and again at its close, and thus sufficiently apprised the plaintiff of the alleged defect in his pleading and afforded him an opportunity to amend, of which opportunity, however, he did not see fit to avail himself. The deficiencies of the complaints were not such as could have been cured by the judgment, even if it had gone in favor of the plaintiff, and, in point of fact, the case contains no competent evidence negativing the exceptions contained in the statute. Judgments were, therefore, properly rendered in favor of the defendants. In this view it would not benefit the plaintiff if his motion, for a new trial on the ground of newly discovered evidence were to he granted. The evidence he seeks to introduce could not cure the fatal defect in his pleading.

The judgments and the orders denying the motions for a new trial must all he affirmed, with costs.

Giegerioh and McCall, JJ., concur.

Judgments and orders affirmed, with costs.  