On the appeal to the Supreme Court, a question seems to have been made that the referee erred in disposing of the case upon the pleadings. That question is not presented in the appellant's points, although elaborately argued by the respondent. It was clearly right to entertain the application in that stage of the case, since the Code provides that the specific objection that the complaint does not state facts sufficient to constitute a cause of action need not be taken by answer or demurrer, but is available in any stage of the action. The practice adopted by the referee has been sanctioned by several adjudications, and is very commonly resorted to at the Circuit, sometimes after the evidence is all in, when it performs the office substantially of a motion in arrest of judgment, or for judgment non obstante veredicta under the old practice, and where the point is plainly and clearly presented on the pleadings, upon the plaintiff's opening, and without going into evidence at all. (See Goold v. Glass, 19 Barb 195; Ludington v. Toft, 10 id. 447; Emery v.Pease, 20 N.Y. 63.) No evidence which could have been given under the pleadings would have changed the result, and a protracted trial was unnecessary to reach it.
The question involved in this case is simply the true construction of the eighteenth section of the act of 1848, authorizing the formation of corporations for manufacturing, mining and mechanical purposes. That section is as follows: "The stockholders of any company organized under the provisions of this act, shall be jointly and severally individually liable for all debts that may be due and owing to all their laborers, servants and apprentices for services performed *Page 642 for such corporations." The averment in the complaint in this case is, that the debt claimed was due to Robert J. Coffin, for services performed by him for the company as "secretary and otherwise." Does this bring him within the protection of the statute? It will not, of course, be pretended that he was an apprentice, nor hardly can it be claimed that he was a laborer, and the inquiry is substantially reduced to the question was he a servant?
The point is a narrow one, and hardly calls for, or is susceptible of much elaboration, and a few words, it seems to me, will dispose of it. As an original question of construction, I think the scope and purpose of the statute was to protect the classes most appropriately described by the words used, as those engaged in manual labor, as distinguished from officers of the corporation or professional men engaged in its service; in short, to furnish additional relief to a class who usually labor for small compensation, to whom the moderate pittance of their wages is an object of interest and necessity, and who are poorly qualified to take care of their own concerns, or look sharply after their employers. A secretary is an officer of the company, not only appurtenant to such corporations as matter of common arrangement and experience, but spoken of in the act under which these corporations are formed.
The allegation that Coffin performed services as secretary, was not, therefore, an allegation that he was a servant or laborer in the employment of the company. Neither did the words, "and otherwise," enlarge the scope of the claim. The defendant, if liable, is so strictly under the provision of the statute; and the necessary condition to a recovery for services claimed to have been performed is, that they must be rendered by one who is a laborer, servant, or apprentice. The complaint, in order to attach a liability to a stockholder, must show services of the particular kind designated in the statute; and the words, "and otherwise," are either insensible, and to be rejected, when sought to be applied to a stockholder's liability, or they must be construed as referring to services performed in the several capacities enumerated by *Page 643 the statute; which brings us directly back to the question with which we started. If we were to attach to these words any larger meaning, we should be giving the statute a construction which would make it cover every kind of service; while its plain import and intent is to afford protection to a specific class enumerated, with care and discrimination. An admission that Robert J. Coffin performed services for the company, otherwise than as secretary, may very well be made: and yet that admission will not charge this defendant, who can only be made liable for that particular kind of service which the statute specifies. In short, no cause of action arising under, or created by, a statute, is stated, unless the complaint of the party, seeking by its aid to recover, brings his case clearly within it.
Upon the cases, so far as they have spoken upon this question, the weight of authority is, I think, decidedly with the defendant. In Conant v. Van Schaick (24 Barb. 87), the claim was made under the general railroad act of 1850, attaching liability to the stockholders of railroad incorporations for debts due to any of its "laborers or servants," for services performed for the corporation. The plaintiff sought to recover for services performed by him as a civil engineer for the company, and for the services of a roadman employed by him. The court held the defendant liable, on the ground that Conant was a servant of the company; but, in the opinion, the court is careful to note a distinction which exists in this case, to wit, that the terms used in the statute will "apply to all persons employed in the service of the company who have not a different, proper and distinctive appellation, such as officers and agents of the company."
In Erricson v. Brown (38 Barb. 390), the action was brought by a consulting engineer against the defendant, as stockholder in a company where the liability imposed was for debts due to "the laborers and operatives" of the corporation. The language is not as broad as in the case before us; but the court held, that the plaintiff was not within the words or spirit of the act; that his services were professional, as distinguished from manual; and that the statute was intended *Page 644 to protect men who work with their hands rather than their heads. While, therefore, the services of the plaintiff might involve some manual labor, that was the incident, rather than the principal, of the service. The case, while it differs from the one at bar, circumstantially, enunciates a principle clearly applicable to it.
But, in Aiken v. Wasson (24 N.Y. 482), the Court of Appeals gave a construction to the words, "laborers and servants," as used in the general railroad act, which harmonizes entirely with the judgment rendered in this case. It was there held, that a contractor for the construction of a part of the road of the company was neither a laborer nor servant within the act. Judge SELDEN says, the policy of the legislature was to throw a special protection around that class of persons who should actually perform the manual labor of the company. He adds, what is very pertinent to this case, that, "in some extended sense, the directors and other principal officers of the corporation may be considered as its agents and servants; and yet no one would contend that the provision was intended for their benefit. The word `servants' is qualified, and, to some extent, limited, by its association with the word `laborers,' according to the familiar maxim, noscitur a sociis." If a contractor, who not only oversees and directs labor, but usually performs a part of it himself, is not a servant, surely a secretary, an officer of the company, whose duties involve ordinarily a minimum amount of either head or hand work, comes very far short of being embraced within that class.
The only case having the semblance of authority to the contrary is Richardson v. Abendroth (43 Barb. 163). No opinion is given in the report of that case; but allusion is made to one which seems to have been rendered on some former occasion, and by which Judge ALLEN, who tried the cause, held himself concluded, for he says the law of the case then before him was that the secretary of a manufacturing company, under the law of 1848, is a servant within the eighteenth section of that act. He held the defendant not liable upon another ground; and his decision was affirmed *Page 645 by the General Term upon the ground stated by him, and no reference is made to the other point. It would have been more satisfactory if the opinion to which allusion is thus made — if, in point of fact, any was given — had been reported, or furnished in some form to the court, that we might have duly weighed and appreciated the grounds on which it proceeded. In the absence of such an opinion, the case can hardly be regarded as an authority, or, if entitled to any consideration, must be deemed quite outweighed by those we have cited, and which conduct us to a different conclusion.
I am also of opinion that it was a condition precedent to the liability of the defendant, that an action should have been commenced against the corporation within a year after the debt became due; nor is any thing stated from which it can be learned when the debt accrued. Without such an averment, no liability on the part of this defendant is shown.
The judgment should be affirmed.