195 A.D. 328 | N.Y. App. Div. | 1921
We have analyzed and commented upon the complaint on an appeal by this appellant from an order denying her motion on the pleadings for judgment dismissing the complaint, which was argued and is decided herewith. (Nauss v. Nauss Brothers Co., No. 1, 195 App. Div. 318.) It is unnecessary on this appeal to consider the allegations of the complaint beyond their relation to the counterclaim. It appears that the plaintiff, who for many years was a stockholder and the treasurer of the defendant company, instituted this suit as a stockholder for equitable relief. The complaint in substance charges, among other things, that the appellant and her coexecutor collusively brought an action against the company on certain promissory notes, claiming that they were valid obligations against it, pursuant to an arrangement by which the judgment to be recovered therein was to be assigned to the defendants Henry J. Hildebrand and Frederick Nauss for
It will thus be seen that the counterclaim is founded on matters not stated in the complaint and in no maimer affects the plaintiff. By the counterclaim it is sought to set aside the assignment of the verdict and the sale of the stock, the sale of which is not referred to in the complaint; and to have the executrix removed; but the validity of the verdict as rendered is not questioned and with respect thereto it is
It follows that the order should be reversed, with ten dollars costs and disbursements, and appellant’s motion for judgment dismissing the counterclaim granted, with ten dollars costs.
Clarke, P. J., Dowling, Merrell and Greenbaum, JJ., concur.
Order reversed, with ten ■ dollars costs and disbursements, and motion granted, with ten dollars costs.