122 N.Y.S. 1019 | N.Y. App. Div. | 1910
The only objections, to the. order which we deem of sufficient importance to require discussion in an opinion are that it allows the plaintiff to plead a new cause of action of a nature different from that originally pleaded, which has arisen during the pendency of the action, and that the facts stated are insufficient to warrant the relief demanded. The rule is now well settled that the merits of the case-will not be considered on an application to serve a supplemental pleading, and that unless the insufficiency of the original pleading has been authoritatively adjudicated, the motion for leave to serve the supplemental pleading will neither be denied on the theory that a cause of action is not stated in the original pleading, nor on - the theory that it will be of no avail, for those questions should be left to. be decided On demurrer, or on motion for judgment on the pleadings, or on the trial, whereby the party desiring to interpose the pleading will be afforded a clear legal right to review any adverse decision or ruling. . (Farmers’ Loam, & Trust Co. v. United Lines Tel. Co., 47 Hun, 315; Prouty v. Lake Shore & M. S. R. R. Co., 85 N. Y. 272; Horowitz v. Goodman, 112 App. Div. 13; Bell Telephone Co., v. Home Telephone Co., 52 id. 13; N. Y. C. & H. R. R. R. Co. v. Haffen, 23 id. 377.) If the proposed pleading contains allegations of fact relevant to and' consistent with the case presented by the original pleading, leave to serve it should not be denied on the ground that it contains other allegations not germane thereto and a motion may be made thereafter notwithstanding the granting of such leave to strike out the irrelevant allegations.
The original complaint contains certain allegations and a demand in the prayer for relief which would only be appropriate to an action by the plaintiffs in their own right as stockholders for an accounting for a violation of contract rights, but considering the title of the action
There are likewise allegations in the supplemental complaint and in the demand for relief which would only be appropriate to • an action by the plaintiffs in their own right as stockholders, and not in the right of the company; but it also contains allegations to the "effect that since the commencement of the action the certificates of stock which are sought herein to be canceled have been illegally voted with a view to securing the management and control of the business in the individual defendants in consummation of said conspiracy, and that they have thereby -exercised, and are exercising
We are of opinion that these allegations are germane to the original complaint. In so far as they relate to matters which have occurred since the commencement of the action they strictly supplement the complaint, for it is charged that all of the acts and things were done pursuant to and in consummation of said conspiracy; and in so far as they relate to matters which occurred before the commencement of the action it was shown that the information was acquired by the plaintiffs since that time. The original action, as we construe it, is in the right of, the corporation for equitable relief to which it is claimed the corporation is entitled on account of misconduct on the part of its officers and directors,
It follows, therefore, that the order was properly granted, and it ’should be affirmed, with ten dollars costs and disbursements.
. Ingraham, P. J., Clarke, Soott and Hiller, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.