— The action is brought to recover a penalty for neglect to file the annual report under the twelfth section *116of chapter forty (Lams of 1848). It is not upon contract (Merchants' Bank agt. Bliss, 35 N. Y., 412). The penalty imposed by that section is, that upon failure to file such report the trustees of the company shall, jointly and severally, be liable for all the debts of the company then existing, &c.
The character of the action is determined by the complaint (Welsh agt. Darragh, 52 N. Y., 590). An inspection of the complaint shows that it is not upon contract, but is brought to enforce a penal obligation of the defendant, under the statute, in his capacity as trustee.
Motion for reference denied, with costs.