#### People *v.*Atlantic Ave. R. Co.

*(Supreme Court, General Term, Second Department.*

July 18, 1890.)

1. Corporations—Dissolution—Discontinuance of Business.

Code Civil Breo. ÍT. V. § 1785, provides that an action to dissolve a corporation may he maintained “where it has suspended its ordinary and lawful business for at least one year. ” Section 1798 provides that the attorney general may sue to vacate the charter of a corporation,'on the ground that it has “forfeited its privileges or franchises, by a failure to exercise its powers. ” Held, that there is no conflict be- • tween the two sections, and an action by the attorney general to dissolve a corporation, on the ground that it has suspended business, can be brought only after the lapse of a year, as prescribed by section 1785.

2. Same—Violation of Labor Law.

A street railroad company does not forfeit its charter by requiring its employes to work more than 10 hours a day in violation of Laws ÍT. T. 1887, c. 529, which provides that “it shall be a misdemeanor for any officer or agent of any such corporation [street railway company] to exact from any of its employes more than 10 hours labor” per day.

Appeal from special term, Kings county.

An action by the attorney general to vacate the" charter of the Atlantic Avenue Bailroad Company of Brooklyn. A demurrer to the complaint was sustained, and final judgment directed in favor of defendant. Plaintiff appeals. Laws j$T. Y. 1887,-c. 529, § 2, provides that “it shall be a misdemeanor for any officer or agent of any such corporation [street railroad company] to exact from any of its employes more than 10 hours labor” per day.

Argued before Barnard, P. J., and Dykman and Pratt, JJ.

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      *Charles F. Tabor,*Atty. Gen., for appellant. *Tracy, McFarland, Board-man*t6 *Platt,*for respondent.

Barnard, P. J.

By section 1785 of the Code, it is provided that an action may be maintained to dissolve a corporation “when it has suspended its ordinary and lawful business for at least one year. ” This is the only provision of law which authorizes a dissolution for a suspension of the business of the corporation. Section 1798 of the Code is not in conflict with section 1785. Section 1798 permits the attorney general to bring an action against a corporation created under the laws of this state, and among the causes specified for vacating a charter of a corporation is when a corporation has forfeited its privileges and franchises by a failure to exercise its powers. This makes no different rule from the one established in section 1785, and it is to that section the attorney general must look for a declaration as to what constitutes a forfeiture of a franchise, by a failure to exercise its power. It may therefore safely be conceded that an action will lie for an omission of duty amounting to a breach of trust by a corporation, but the legislature has plainly given a period of one year, during which an omission to transact its business shall not be sufficient to annul the charter. There is therefore no cause of action stated in the complaint under that breach of it which avers á discontinuance of business for six days, and there is no averment that the company had. not the power and wish to continue the business. *Bradt*v. *Benedict,*17 N. Y. 93.

By chapter 529, Laws 1887, 10 hours’ labor to be performed within 12 hours was the standard day’s work to be exacted by the defendant from its employes, and the act made a violation of same a misdemeanor as to all officers and agents of the corporation who exacted more than 10 hours a day. The complaint avers a failure to observe that law as a reason for annulling the charter of the defendant. It is not a legal cause for a forfeiture of the charter. The act does not so provide, but it does provide a criminal punishment for its violation as to its officers and agents who offend against its provision. • The act is not in terms an amendment to the railroad act, and it is not an amendment by implication. A corporation must act by agents, and these agents cannot destroy the corporation by a criminal act, in the absence of the expression of a legislative intent to that effect in the legislative act which creates the crime. The judgment should therefore be affirmed, with costs. All concur.