33 N.Y.S. 549 | N.Y. Sup. Ct. | 1895
The complaint charges that Jay Gould and ' Russell Sage have misappropriated 30,000 shares of the Denver Pacific Railway & Telegraph Company, conveyed to them in trust by tlxe Kansas Pacific Railway Company as collateral security for the payment of certain bonds known as Kansas Pacific Consolidated bonds. The conveyance was by deed of trust made by the Kansas Pacific Railway Company to Jay Gould and Russell Sage, as trustees, on May 1, 1819. The ■complaint contains a very full specification of the manner in which the alleged breach of trust was accomplished, but which it is unnecessary to set out for the purpose of deciding the ■only question raised by the demiirrer. The action is brought by the plaintiff, as owner of a portion of the consolidated bonds, on its own behalf and on behalf of other holders of such bonds, to compel restitution to the trust estate of the value of the converted securities and for the removal of the trustees. The parties defendant are Russell Sage, George J. Gould, individually, and Edwin Gould, George J. Gould, Howard Gould and Helen.M. Gould, as executors and executrix of the last will of Jay Gould, deceased. It appears from
The defendant George J.' Gould now demurs to the complaint on the ground that it does not state facts sufficient to constitute a cause of action against* him individually.
The point of the demurrer is best illustrated by the statement that if the words “ as trustee, etc.” had been added to. his name in the summons the demurrer would not have been interposed. As is stated by his counsel in the brief submitted, “ It is because the plaintiff has not made him a party as a trustee, but individually, and has failed to state a cause of action against him individually, that Mr. Gould demurs. He is entitled at the outset to know in exactly what capacity the plaintiff sues him.” The point which is thus raised is a highly
I do not think this position to be a tenable one. In the first place, a demurrer does not run to the summons or to the caption of the complaint. It is confined to the allegations of the complaint. "We may look to the summons in considering the question of the capacity in which the parties are sued, but it is not controlling, and where the allegations of the complaint clearly charge the defendant in one capacity, and in that capacity only, the complaint should control and override any contradictory description in the summons. The object of the summons is to bring the individual into court, where in contemplation of law he remains to be dealt with upon a determination of the issues raised by whatever pleadings may be interposed, and in respect to whatever matters the plaintiff may tender an issue. The summons itself refers to the com
I do not think that the fact that the question arose in reference to a plaintiff who was supporting the status which he claimed to have assumed when he voluntarily came into court affords any substantial ground for distinguishing this case on principle. The decision really seems to rest upon the proposition that the allegations of the complaint are paramount in determining 'the- relation, whether personal or representative, in which the parties stand to the action, and that the test of the capacity in which a party sues or is sued is to be found in the complaint. The learned counsel for the defendant claims that the present case is controlled by Austin v. Munro, 47 N. Y. 360, and he rests the strength of his position upon that case as a precedent. The case in question was an action brought in terms against the defendants as executors; the complaint set up a contract with them as such, and the prayer for relief was a recovery from the assets of the estate. The whole purpose and intent of the pleader was to charge the defendants in their representative capacity only. The defendants demurred and the demurrer was sustained, it being evident
The demurrer is overruled, with costs, with, leave' to the defendant to answer within twenty days on payment of costs.
Demurrer overruled, with costs, with leave to defendant to answer on payment of costs.