The authorities were reviewed by Judge DANFORTH in his opinion in Bruce v. Platt ( 80 N.Y. 379), and the decision of the court formulated thereon is as follows: "Where it appeared that in December, 1874, the entire property of such a corporation was sold under execution; that before January 1, 1875, every person interested in it as a corporator had abandoned it; that it was carrying on no business, had no means of procuring money, and intended to do no further act in pursuance of the object of its incorporation; held, that the statute did not require the filing of a report for the year 1875; that for every practical purpose the corporation might be deemed to have been dissolved, and so, that its obligation to file a report had ceased before the arrival of the time when the report was required." The question was again before the court in Kirkland v. Kille ( 99 N.Y. 390), where it was said that "when the condition of the company is such that the end and object for which it was formed are destroyed, and there is neither an ability nor intention on its part at any time to farther prosecute its business, it is no longer required to make the report mentioned in" section 12 of the General Manufacturing Act of 1848. In the case of First National Bank v. Lamon ( 130 N.Y. 366), cited by respondents' counsel, in which it was held that the trustees were not, under the circumstances in that case, relieved from the duty of filing the report, Judge BROWN, writing the opinion, said: "This court has decided that on the appointment of a receiver of a manufacturing company the corporation is so far dissolved that thereafter the duty is no longer upon the trustees to make the report ( Huguenot Bank v. Studwell, 74 N.Y. 621), and that when the corporation has been practically abandoned the requirement as to filing reports does not apply to the trustees.
It could easily occur, as suggested by counsel, that a report would be made after a bank had ceased to do business. Kirkland v. Kille (1885), 99 N.Y. 390, 2 N.E. 36."
In Bruce v. Platt the alleged default was in January, 1875, but more than a year previous all the property of the corporation had been sold under execution and from that time the corporation had no property or business, no means of procuring money and no ability or intention of resuming business. The result of these cases is summed up by Judge DANFORTH in Kirkland v. Kille ( 99 N.Y. 390-395) as follows: When the condition of the company is such that the end and object for which it was formed are destroyed and there is neither an ability or intention on its part at any time to further prosecute its business, it is no longer required to make the report mentioned in section 12 of the Manufacturing Act. This case does not fall within the rules enunciated in any of the cases cited.
defendant concededly executed the guaranty, and if it was intended for the copartnership, as alleged in the complaint, he concedes that he has no defense thereto. It was sufficient for him to deny the allegations of the complaint with respect to the firm being the payee of the notes and the party to whom the guaranty ran. If he had pleaded that the guaranty was given to the corporation, and a defense that he had as against the corporation, it would have been wholly irrelevant and in effect a hypothetical pleading, which is unauthorized. ( Lyon v. Blossom, 4 Duer, 318; Corn v. Levy, 97 App. Div. 48; Stroock Plush Co. v. Talcott, 129 id. 14, 18.) Of course, if the plaintiff had been permitted to proceed with the action on the theory that the guaranty ran to the corporation, that would not be according to the allegations of the complaint, and the defendant would have had an absolute right to amend by pleading a defense as against the corporation. (See Neudecker v. Kohlberg, 81 N.Y. 296; Kirkland v. Kille, 99 id. 390; Ellis v. Hearn, 132 App. Div. 207; Matter of Brady, 69 N.Y. 215; Walsh v. Cornett, 17 Hun, 27; Buellesbach v. Sulka, 94 N.Y. Supp. 1.) The respondent does not attempt to sustain the recovery on the theory that the guaranty was to the corporation, but still insists, as it did upon the trial, that it ran to the copartnership firm. Plaintiff was permitted to offer evidence to sustain the allegation of the complaint that the notes and guaranty were given to the copartnership firm and the effect of the ruling of the trial court was to make that evidence conclusive, without affording the defendant an opportunity, as was his right, to controvert it. (See McCormack v. Mandelbaum, 102 App. Div. 302.) It follows, therefore, that the judgment should be reversed and a new trial granted, with costs to appellant to abide the event.
That was held even of acts of a de jure corporation. In Kirkland v. Kille ( 99 N.Y. 390) the action was brought against defendants, trustees of the Globe Smelting Company, to recover a debt of the company on the ground that the defendants had failed to make and file an annual report for the year 1876, as required by the General Manufacturing Act (Laws of 1848, chap. 40, ยง 12, as amd. by Laws of 1875, chap. 510).
It is undoubted that the issuing of corporate bonds and their transfer to a purchaser create a debt and constitute him a creditor of the company. In Kirkland v. Kille ( 99 N.Y. 393) "The plaintiff proved that the bonds in question were part of a series of first mortgage bonds, issued by the Globe Smelting Company, and authorized by its trustees, for the sole purpose `of borrowing money, in order to successfully conduct the business for which it was incorporated.'" The plaintiff in that case was precluded from maintaining the action against the trustees, upon the ground that the bonds had been diverted from the purpose for which they were intended and authorized, to his knowledge; but it appears to have been assumed, without question or argument, both by the court and the defendants' counsel, that the mortgage bonds constituted a debt within the purview of the statute.