100 N.Y.S. 192 | N.Y. App. Div. | 1906
The motion for a bill of particulars was really an attempt to have the complaint made more definite and certain, and should have been denied. The complaint alleges that the plaintiffs were stockholders in the Rational Salt Company; that the defendant the International Salt Company was formed and acquired a majority of the stock of the other company by issuing its stock certificates therefor; that the plaintiffs retained their stock in the Rational Company ; that having become the majority stockholder of the Rational Company, the International Company elected its nominees as directors of the former company, and in that way controlled it, and took away from it, and unto itself, a competitor, all of its assets and profitable business, thereby making it insolvent, and its stock worthless, and then had it put in the hands of receivers. The suit is brought by the plaintiffs because the receivers, the individual defendants, refused to bring it on their request. The prayer for
, This is a definite and certain complaint and gives all the particulars the defendants are entitled to. The wrongful breach of trust" of the defendant the International Company as a stockholder to the ¡ilaintiff and all of its fellow-stockholders could not be more plainly stated. The order really requires the plaintiffs to recite all of tlieir evidence.
The learned counsel for the defendants contends that the complaint alleges fraud without alleging any facts to support it, and he wants these facts supplied through a bill of particulars. Mo rule of pleading is better known among us than that an allegation of fraud without an allegation of the facts constituting it is an allegation of law and worthless. It would be strange therefore for the opposite party to cause such a pleading to be made good by requiring an allegation of the facts. ' But here the complaint-does allege the facts.
The order should be reversed.
Hibschbebg, P. J., IIookeb, Eici-i and Milleb, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with costs.
