Opinion
April Term, 1899.
Judgment affirmed, with costs.
The main question here is the same as that which we have considered in the case of Lyman v. Shenandoah Social Club ( ante, p. 459). Our opinion in the latter case covers the present, and, so far as concerns the legal question presented, calls for an affirmance of this judgment. The appellant, however, contends that the testimony here was not, as in the Shenandoah case, so clear and conclusive as to warrant a direction. We have examined the testimony and are unable to perceive any substantial difference between the facts of the two cases. That the Gramercy Club was an existing corporation when it applied for a license was sufficiently proved. The fact too was recited in the bond, and the appellant is estopped from denying that recital. ( M.L.I. Co. v. Bender, 124 N.Y. 47.) It is said that it was one Corey who violated the law and not the corporation. But it clearly appears that Corey was acting throughout for the corporation. He in fact practically was the corporation. It appears that Corey went through some such performance as the purchase of the club's charter — whatever, under the circumstances, that may mean — and that thereafter three or four persons got together and said: "We are the Gramercy Club." Thereafter, Corey conducted the business. Plainly he was in a legal sense the agent of the corporation, or else he was in effect a corporation sole. He was certainly all there was of the corporation. If he were to be treated here as a principal apart from the corporation, it would be an easy and effective way not only of evading the bond and all responsibility thereunder, but of evading and nullifying the Liquor Tax Law. The Gramercy Club was, it would seem, enough of a corporation to secure a license. It was as much or as little of a practical nonentity then as it was when its "owner" or agent violated the law for it. Such devices can never avail to defeat the law. There was no real conflict of testimony upon any material point. Whether the principal and surety upon this bond were liable was a question of law, dependent upon the effect of the undisputed facts. We think the learned trial judge correctly held that there was nothing to go to the jury, and that the undoubted violations of law which were proved were violations of the principal in this bond, for which the surety is clearly liable. The judgment was right and should be affirmed, with costs. Van Brunt, P.J., Rumsey, Patterson and McLaughlin, JJ., concurred.