249 A.D. 621 | N.Y. App. Div. | 1936
Plaintiff, in an effort to fortify the sufficiency of his amended complaint, incorporated allegations which were inappropriate and unnecessary for the cause of action he was seeking to enforce. For this reason the learned Special Term concluded the action was a, derivative one to compel the individual defendants to account for their alleged wrongful acts as directors of the corporate defendant. As the amended complaint so viewed did not allege the corporation had either refused or unreasonably failed, after demand, to bring the action, the amended complaint was dismissed with leave to plead over within ten days. Instead of serving an amended complaint, plaintiff appealed from the order. Meanwhile defendants entered judgment dismissing the complaint, and plaintiff also appeals from the judgment. A demand is not necessary when the gist of the action is the wrongful acts of these same directors and sufficient facts are alleged to show the futility of making a demand.
