Lyman v. Club

Appellate Division of the Supreme Court of New York

Lyman v. Club

2 Liquor Tax Rep. 82, 57 N.Y.S. 376

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 15, 1899

StatusPublished

This text of 2 Liquor Tax Rep. 82 (Lyman v. Club) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lyman v. Club, 2 Liquor Tax Rep. 82, 57 N.Y.S. 376 (N.Y. Ct. App. 1899).

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Opinion

Barrett, J.

The main question here is the same as that which we have considered in the case of the present plaintiff against the Shenandoah Club. Our opinion in the latter case covers the present, and so far as concerns the legal questions 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 Grander cy 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 [83]*83that 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.

All concur.

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Barrett, J.

The main question here is the same as that which we have considered in the case of the present plaintiff against the Shenandoah Club. Our opinion in the latter case covers the present, and so far as concerns the legal questions 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 Grander cy 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 [83]*83that 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.

All concur.

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2 Liquor Tax Rep. 82, 57 N.Y.S. 376, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lyman-v-club-nyappdiv-1899.

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