
    The Bank of the Metropolis, Respondent, v. Eberhard Faber, Appellant.
    
      Corporations — liability of director for not filing an annual report—effect of the repeal of an amendatory act—revival of an abrogated law — statutory revision in 1892.
    The rule that, where one act amends another so as to read as prescribed in the former, the repeal of the amendatory act does not revive the original law, is subject to the limitation that the intent of the Legislature must govern where that intent is apparent from the language employed and from statutes in pari materia, all being read in the light of the purpose sought to be attained.
    A legislativo intent to revive a law which has been wholly annihilated by legislative action is not, however, alone sufficient to accomplish the revival; there must be some legislative expression, using language equivalent to a re-enactment.
    Chapters 677 to 691, inclusive, of the Laws of 1892, being the laws which were prepared in that year by the commissioners of statutory revision, are not to be treated as independent enactments, having no special relation to each other, but, for the purpose of ascertaining the legislative intent, are to be regarded rather as a single act, with chapters separately numbered, the totality constituting the report and the system of the commissioners of statutory revision.
    In an action brought to charge a director of a corporation with liability for a corporate debt on the ground that no annual report had been filed, the defendant interposed a demurrer, claiming that, between the 1st day of May, 1891, when chapter 564 of the Laws of 1890 went into effect, and the 18th day of May, 1892, when chapter 688 of the Laws of 1892 became a law, there was no statute which required such a corporation to file an annual report.
    Section 30 of chapter 564 of the Laws of 1890, which took effect May 1, 1891, providing for the filing of an annual report, and the liability of directors in default thereof, was amended by chapter 2 of the Laws of 1892, which latter act was repealed by chapter 687 of the Laws of 1892, preserving only such rights and liabilities as had accrued before May 1, 1891. Chapter 564 o-f the Laws of 1890 was amended and substantially re-enacted, as to section 30, by chapter 688 of the Laws of 1892.
    
      Held, that the effect of this legislation was that, contemporaneously with the repeal of chapter 2 of the Laws of 1892, the Legislature substantially re-enacted section 30 of chapter 564 of the Laws of 1890, and continued it as amended by chapter 688 of the Laws of 1892;
    That when the Legislature repealed chapter 2 of the Laws of 1892, the prior provision of section 30 of the act of 1890 was, by the operation of section 31 of chapter 677 of the Laws of 1892, known as the Statutory Construction Law, expressly left in force;
    That the rules of construction enacted by the Statutory Construction Law apply to acts passed at the same session of the Legislature; that section 38 of said act merely prevents it, or any other chapter of the general revision of 1892, from repealing by implication any law passed at the same session; but that, where-any such law contains an express repeal, the Statutory Construction Law, if otherwise applicable, determines the effect to be given to it.
    
      Ottman v. Hoffman (7 Misc. Rep. 714), disapproved.
    Appeal by the defendant, Eberhard Faber, from an interlocutory judgment of the Court of Common Pleas for the city and county of New York i-n favor of the plaintiff, entered-in the office of the clerk of said court on the 6th day of November, 1895, upon the decision of the court rendered after a trial at a Special Term of said court overruling the defendant’s demurrer to the complaint.
    
      James J. Allen, for the appellant.
    
      J), M. Porter, for the respondent.
   Barrett, J.:

The complaint alleges that on or about December 31,1892, plaintiff became the owner and holder, before maturity and for value, of' a note made by the F. J. Kaldenberg Company, a domestic corporation other than a moneyed or railroad corporation; that at no time during the year 1892, or prior to the acquisition of said note by the-.plaintiff, did said company file an annual report as required by law, and that during the whole of said period the defendant was a director of said company. It is demurred to upon the ground that it does-not state facts sufficient to constitute a cause of action. The reason assigned in support of the demurrer is that, despite the numerous statutes making directors liable for debts of the corporation in default-of the filing of an annual report, under none of them can the defendant be called to account in this case. A number of the statutes-must be considered.

Chapter 564 of the Laws of 1890, the original Stock Corporation Law, took effect May 1, 1891. It provided in section 30 for the-filing of an annual report, and the liability of directors in default thereof; and superseded all requirements on this head in prior acts. Chapter 2 of the Laws of 1892, which took effect January 14,1892, amended section 30 of this act so as to read as therein prescribed. The General Corporation Law of 1892 (Chap. 687) repealed chapter 2, and in its saving clause preserved only such rights and liabilities-as had accrued prior to May 1, 1891. The Stock Corporation Law of the same year (Chap. 688) then proceeded to amend the act of 1890, and, among other sections, section 30, so as to read as therein prescribed. Upon this state of facts the appellant claims that chapter 2 of the Laws of 1892, in effect repealed section 30 of the act of 1890 ; that the repeal of chapter 2 did not revive this section 30; and that the -Stock Corporation Law (Chap. 688) only amended so much of the act of 1890 as was in existence. He argues that, as section 30 of the act of 1890 was, in his view, non-existent, there was nothing there to amend. From all this he deduces the conclusion that chapter 688 of the Laws of 1892 must, with regard to section 30, be deemed a new enactment, and thus that between the 1st day of May, 1891, when the act of 1890 went into effect, and th& 18th day of May, 1892, when this chapter 688 became a law, there; is a hiatus through which his client escapes.

The rule is undoubtedly well settled that, where one act amends', another so as to read as prescribed in the former, the repeal of theamendatory act does not revive the original law. (People ex rel. Canajohorie Nat. Bk. v. Supervisors, 67 N. Y. 109; People v. Wilmerding, 136 id. 363.) But this canon of construction, is not absolute. It is subject to the other rule, that the intent, of the Legislature must govern when that intent is not the subject of mere conjecture, but is apparent from the language-employed, and from statutes inpari materia, all read in the light of the purpose sought to be attained. (Smith v. The People, 47 N. Y. 330; People ex rel. Furman v. Clute, 50 id. 451; Matter of Rochester Water Commissioners, 66 id. 413.) Smith v. The People is an extreme illustration of the modification of the general rule. It was there held that section 120 of chapter 137 of the Laws of 1870, which expressly repealed three prior acts, nevertheless did not abrogate provisions included in these three acts permitting the Court of Oyer and Terminer to be held by a single justice of the Supreme Court. This case was followed in Matter of Rochester Water Commissioners (supra), where the rule that effect should be given to the intent rather than to the literal terms of an act was-emphasized.

This modification of the general rule is itself subject to the further doctrine that a legislative intent to revive a law which has by leg- " islative action been wholly annihilated, is not alone sufficient to acconqffish such revival, but that there must be some legislative expression using language equivalent to a re-enactment. The question here, therefore, is whether the legislative intent to retain and continue section 30 of the act of 1890 has been adequately expressed; or, to speak more accurately, whether the language employed is equivalent to a re-enactment. We think it is.

The appellant’s reasoning depends wholly upon his application of strict rules of construction to what he claims to be a series of Isolated and independent laws. Therein lies its fallacy. The laws in question are not independent enactments. They are, it is true, separately numbered, and they have various titles. But they are grouped together in close connection, and are part and parcel of the scheme of revision and consolidation prepared by the commissioners of statutory revision, and reported to the Legislature at this very session of 1892. We find that this Legislature authorized the Secretary of State to include the chapters of this revision in a separate volume (Chap. 623). Indeed, this volume is wholly given up to the work of the commission.

Thus we have chapters 677 to 691 inclusive, all passed at the same session of the Legislature, all approved by the Governor on the same day, and all part of the system of statutory revision and consolidation. It is impossible, therefore, to treat these chapters as independent enactments having no special relation to each other or to the general scheme of. revision. They should, on the contrary, for the qjurpose of ascertaining the legislative intent with regard to such a question as the present, be treated as one single act. The chapters are separately numbered, and there was a systematic arrangement of subjects. This was convenient and orderly. But the totality constituted the report and the system. Each act should, consequently, be read and construed as a part of the unit. When, therefore, the Legislature repealed chapter 2 of its own laws, and at the same time, and, so to speak, in the same breath, amended section 30 of the act of 1890, it in effect said that the ordinary canon of construction should not apply ; that section 30 was in existence; and that it should be, and was, revived and continued as amended by chapter 688. There was here but one definite purpose and one distinct act. Chapter 2 of the Laws of 1892 amended but a single section of the act of 1890. The commissioners amended and revised the entire act. To accomplish this clearly and conveniently it was essential that all special amendments should be brushed aside, and the original law should be directly examined and dealt with, first by the commissioners, and then by the Legislature. For this purpose, and for this purpose only, the special amendment made by chapter 2 of the Laws of 1892 was repealed. It was treated for the purpose of the revision as though it had never been passed.

This would be the true construction of the acts in question, even if the Statutory Construction Law were not a part of the revision. We think, however, that the Statutory Construction Law especially enacts the same rule. It is there provided (Chap. 677, § 31) as follows : “ The repeal hereafter or by this chapter of any provision of a statute which amends a provision of a prior statute, leaves such prior provision in force, unless the amendatory statute be a substantial re-enactment of the statute amended.”

It is entirely clear that the amendatory act (Chap. 2 of the Laws of 1892) is not a substantial re-enactment of section 30 of the act .of 1890. The variations are numerous and material. What, then, is the language quoted but a legislative enactment that the repeal of the amendatory act, by chapter 687, leaves the prior provision (§ 30 of the act of 1890) in force ? It is contended that section 33 of the Statutory Construction Law indicates that this section 31 was not intended to apply to statutes passed at the same session of the Legislature. This contention confuses repeal with construction. What section 33 provides is, that nothing in the revision shall supersede or repeal by implication any law passed at the same session. But what of that? That simply retains the repeal. Section 31 provides for the construction to be given to the repeal.

What was meant by section 33 was, that in accepting and enacting in bulk the general body of the revision, the Legislature desired to make sure of the retention of all the special laws on cognate subjects which had been passed before the revision went into effect, and which had not been expressly repealed. It had no reference to the general laws embodied in the revision itself. We have examined Ottman v. Hoffman (7 Misc. Rep. 714), but we find nothing in that case which affects the conclusion at which we have arrived.

Our conclusion is that, contemporaneously with the repeal of chapter 2 of the Laws of 1892, the Legislature substantially re-enacted' section 30.of chapter 564 of the Laws of 1890, and continued it as amended by chapter 688 of the Laws of 1892.

Our further conclusion is that, when the Legislature -repealed chapter 2 of the Laws of 1892, the prior provision of section 30 of the act of 1890 was, by the operation of section 31 of the Statutory Construction Act, expressly left in force. And it was at substantially the same moment amended by chapter 688 and, as thus amended, continued.

It would not aid the appellant to contend that, even if the original section 30 were held to be revived by the repeal of the amendatory act, this would not make him liable since it was the amendatory 'and not the amended act which imposed the liability upon him. We have discovered the legislative intent, namely, that the whole of chapter 564 of the Laws of 1890 and chapter 688 of the Laws, of 1892 should.take the same course “ and have the same effect” as though chapter 2 of the Laws of 1892 had never existed; and the amendment of the original Stock Corporation Law by the revising law retained all liabilities which had accrued under any law since the passage of the former. (Matter of Estate of Prime, 136 N. Y. 347.) This being the intent, it matters not under which law the defendant, became liable. He would have been liable under • the original law if the amendment had not been passed; and all liabilities incurred under the amendment, which would have been incurred if it had not been passed, were retained when it was repealed. We may add that the liability imposed by the revised law (Chap. 688) is» almost precisely the same as that which was imposed by the repealed law. The defendant is, therefore, held to no other or greater responsibility than that which rested upon him throughout.

Liability such as is sued on here has already been enforced in a number of cases. (Providence Steam Co. v. Connell, 86 Hun, 319; Novelty Mfg. Co. v. Connell, 88 id. 254.) The conclusion at which we have arrived makes it unnecessary to decide whether it would have been proper to follow these cases on the principle of stcvre decisis in view of the fact that the point here, raised was not considered in them.

The judgment overruling the demurrer should be affirmed, with costs, with leave to the defendant to answer within twenty days from the entry of judgment upon payment of costs of the appeal and costs of the court below.

Van Brunt, P. J., Rtjmsey, Williams and Ingraham, JJ., concurred.

Judgment affirmed, with costs, with leave to the defendant to-answer within twenty days from the entry of judgment upon payment of costs of appeal and costs of the court below.  