Ogden v. Rollo

13 Abb. Pr. 300 | N.Y. Sup. Ct. | 1861

Lead Opinion

By the Court.—Sutherland, J.

—The complaint purports to contain two causes of action. The- 1st, 2d, 3d, 4th,: and 5th clauses of the complaint contain the first alleged cause of action, and the 6th clause the second alleged cause of action.

I think there is a fatal defect in both counts, or in stating both alleged causes of action, in this: that it is not alleged, nor does it appear, that the plaintiff was a creditor of the corporation at the time the wrongful acts and violation of law complain? ed of are alleged to have been done or committed.

The - theory of both counts is, that the wrongful acts.- complained of caused the insolvency of the corporation, and that the plaintiff became a creditor ■ after such insolvency had been so caused, and that he has sustained loss by reason of such insolvency.

The first count alleges that the unlawful acts were committed, or suffered, between the 15th September, 1855, and the 1st day of July, 1856; and that such acts caused the insolvency of the corporation prior to said 1st day of July, and that the plaintiff is, and was, on the 1st day of July, 1856, a creditor of said corporation. It is not even alleged that the defendant was a trustee when the plaintiff became a creditor.

The second count alleges that the insolvency of the corporation was caused by certain wrongful acts of the defendant, in conjunction with other trustees; but it also alleges that the corporation was insolvent when the plaintiff’s vessels were insured, and when the corporation became liable to the plaintiff on said insurance for a loss.

The theory of the whole complaint is, that certain wrongful acts done, permitted, or suffered by the defendant as a trustee, in conjunction with the other trustees, between certain dates named, caused the insolvency of the corporation; that the plaintiff became a creditor of the corporation when it was so insolvent ; and he really claims to recover for a loss suffered because he gave credit to or became an insurer in an insolvent company. If the corporation was insolvent when he insured or became a creditor, on a loss, or otherwise, it is plain to me that he must charge his loss to the insolvency, and not to the wrongful acts complained of which caused the insolvency. Hot being a creditor when the wrongful acts were committed, or suffered, he cannot be said to have been directly injured by them. The loss or injury he complains of is too remote to be charged to the wrongful acts complained of.

Without examining any other point raised by the defendant’s demurrers, I think the judgment below should be reversed, and that the defendant should have judgment on the demurrer, with liberty to plaintiff to amend his complaint in twenty days, on payment of costs.

Clerke, P. J., concurred.

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Dissenting Opinion

Leonard, J., dissenting.

—I do not concur as to the second count.

The defendant’s acts caused an insolvency. He was a trustee. The averment of these facts supersedes the necessity to aver defendant’s knowledge of the insolvency.

■ After the commission of these acts, causing insolvency, while he was a trustee, the public and the plaintiff being ignorant of the insolvency, the defendant suffered the company, through its officers, to hold itself out as solvent, and caused the plaintiff to receive and rely on its contract of indemnity, whereby an injury was sustained.

The second count is sufficient as an action on the case.

I concur as to the first count. The party complaining must be a creditor, or have a contract on which he may become a creditor, when the violations of law complained of occur. The first count is defective in not so alleging.