120 N.Y.S. 41 | N.Y. App. Div. | 1909
The defendant is a corporation organized under the laws of New Jersey on the 11th day of March, 1899. It has been and is conducting business in the city of Nesv York under a certificate issued by the Secretary of State on the 14th day of April, 1899, pursuant to the provisions of section 15 of the General Corporation Law with respect to permitting foreign corporations to carry on business in this State. (See Gen. Laws, chap. 35, § 15; Laws of 1892, chap. 687, § 15, since amd. by Laws of 1901, chaps. 96, 538, and Laws of 1904, chap. 490; now Consol. Laws, chap. 23 [Laws of 1909, chap. 28]; § 15.) The action is brought by the People in their soveréign right' for redress by way of injanction and a cancellation of the permit to do business, on the ground that the defendant has deliberately,., repeatedly and continuously violated the provisions of section 7 of the Stock Corporation Law (Gen. Laws, chap. 36 ; Laws of 1890, chap. 564, as amd. by Laws of 1892, chap. 688 and Laws of 1897, chap. 384; now Stock Corp. Law [Consol. Laws, chap. 59; Laws of 1909, chap. 61], § 14), and sections 1 and 3 of chapter 690 of the Laws of 1899 (now General Business Law [Consol. Law, chap. 20; Laws of 1909, chap. 25], §§ 340, 342) by combining with other corporations and persons for the creation of a monopoly in the ice trade in the city of New York and adjacent territory,) and for the unlawful restraint of trade in said business, by limiting the production and sale of ice in the city and, adjacent territory in the State, and for the prevention of competition therein, and has conducted and is conducting its business in contravention of the pulilic policy of this State, and in violation of the provisions of section 168 of the Penal Code (now Penal Law [Consol. Laws, chap. 40; Laws of 1909, chap. 88], § 580) has conspired with other persons and corporations to commit acts injurious to trade and commerce with respect to the production and sale of ice, and to commit crimes with respect thereto.
The complaint contains seven-counts, and the relief demanded is threefold: First, that the consummation and execution of certain contracts and the repetition of certain alleged illegal acts be. enjoined; second, that the defendant be perpetually enjoined from interfering with or preventing competition in the supply and sale, of ice in Greater Hew York and surrounding towns within the State,
The action was commenced on the 6th day of July, 1908, and it was then authorized by section 3 of chapter 690 of the Laws of 1899, and by section 1948 of the Code of Civil Procedure (as amd. by Laws of 1896, chap. 962). The provisions of said section 1948, so far as material, were at the time the action was commenced as follows:
“The Attorney-General maymaintain an action, upon his own/ information or upon the complaint of a private person, in either of tiie following cases: * * .*
“4. Against a foreign corporation which exercises within the State any corporate rights, privileges or franchises not granted to it by the law of this State; or which within the State has violated any provision of law, or, contrary to law, has done or omitted any act, or has exercised a privilege or franchise not conferred upon it by the law of this State, where, in a similar case, a domestic corporation would, in accordance with section seventeen hundred and ninety-eight of this act, be liable to an action to vacate its charter- and to annul its existence; or which exercises within the State any corporate rights, privileges or franchises in a manner contrary to the public policy of the State.” '
This section has since beeii amended by making the reference to section 131 of the General Corporation Law instead of to section 1798 of the Code of Civil Procedure which was repealed. (Consol. Laws, chap. 23 ; Laws of 1909, chaps. 28, 65.) The extent of the relief to which the People may be entitled on proof of the allegations of the complaint is not entirely clear. The only statutory provisions with respect to the judgment to be rendered in such an
The order also requires that the plaintiff, make the complaint more definite and certain “,by showing in the case of each repetition in 6 the first cause of' action ’ of allegations of- a contract alleged to have been'made between the same parties whether the same contract is in each instance referred to; and, if so, that the complaint be relieved of ■ the resulting'redundancy in that each .Contract be described but once,” and by setting forth in full the contracts referred to in paragraph 10 of the complaint, or by stating in full the legal effect of all the material terms thereof. We are of Opinion that the complaint was sufficiently definite in' these- particulars, and that the order in this regard is likewise erroneous. With respect to- the alleged repetition “ of allegations of a contract alleged to have been made between the same parties” “in ‘the first cause of . action,’ ” we fail to discover any indefiniteness or redundancy with respect thereto. If the defendant desires copies of the contracts referred to in paragraph 10 of the complaint, its remedy is by a motion for a bill of particulars, and not to make the-complaint more definite and certain. Assuming, as we do, that it. was essential that the plaintiff plead the contracts, it was not required to set' forth
It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.
Ingraham, Clarke, Houghton and Soott, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.