85 N.Y.S. 104 | N.Y. App. Div. | 1903
The plaintiff as a stockholder of the defendant, the Hudson Company, a foreign corporation, seeks to enforce obligations in favor of the Hudson Company. The complaint alleges that the defendant, the New York Mutual Savings and Loan Association, which will be designated the loan association, a corporation organized under the laws of this State, made a contract with the defendant, the Hudson Company, a corporation organized under the laws of the State of New Jersey, by which it was agreed that in consideration of the advance by the Hudson Company of the moneys necessary to enable, the loan association to start to do business, there should be set apart for and paid to the Hudson Company by the loan association the sum of one dollar per share upon each and every share of capital stock, of the loan association sold, issued, outstanding and in force
This cause of action is to enforce the obligation of the loan association to the Hudson Company. Assuming, as the plaintiff claims, that the action could be maintained as an action in equity, and that upon these facts the court could compel the loan association to account to the Hudson Company for the balance due under the contract, it is apparent that the directors of neither the Hudson Company nor the loan association are proper parties to the action. Upon the facts as pleaded no relief could be obtained against the directors of either corporation. If the loan association is indebted to the Hudson Company under this contract, and the contract is one that can be enforced, the judgment would be in favor of the Hudson Company against the loan association for the amount found to be due, and in such an action the liability of the defendant Johnson as a director of the Hudson Company to it for his acts as such director would be an entirely different cause of action, depending upon entirely different proof and calling for different relief from the action against the loan association. The allegations as to a failure of the officers of the Hudson Company to enforce this contract against the loan association, and their refusal to enforce it when a demand was made upon them by the plaintiff, was necessary only to give the plaintiff as a stockholder a standing in court to enforce the obligatidn in favor of the Hudson Company, and would justify,
Section 484 of the Code of Civil Procedure provides that the plaintiff may unite in the same complaint two or more causes of action, whether they are such as were formerly denominated legal or equitable, or both, where it appears upon the face of the complaint that all the causes of action so united belong to one of the subdivisions of the section; that they are consistent with each other, and, except as otherwise prescribed by law, that they affect all 'the parties to the action. These two causes of action 'which the complaint seeks to enforce cannot be united under this provision, as a cause of action against the loan association does not affect the defendants Johnson, Dillingham, Trowbridge and Rollins, and the cause of action against Johnson does not affect any of the other parties to the action.
None of the cases cited by the respondent at all justify uniting these two causes of action in one complaint. Miller v. Barlow (78 App. Div. 331) was an action brought by the plaintiff as a director of a foreign corporation to compel the officers of that company to account for money which they had received for the benefit of the company and wrongfully used for their private purposes. In that case, although one of the grounds of demurrer was that causes of action had been improperly united, it was stated in the opinion that that ground was not referred to in the brief of the appellants, nor otherwise argued. Merely calling an action one for an accounting
It follows that the judgment appealed from must be reversed, with costs, and the demurrer sustained, with costs, causes of action having been improperly joined, with leave to the plaintiff to amend the complaint upon the payment of costs in this court and in the court below.
Van Brunt, P. J., O’Brien, McLaughlin and Hatch, JJ.,. concurred.
Judgment reversed, with-costs, and demurrer sustained, with costs,, with leave to plaintiff to amend complaint upon payment of costs in this court and, in the court below.