91 N.Y.S. 477 | N.Y. App. Div. | 1905
The basis for the interlocutory judgment' appears to be an order instead of a decision, which it should be, although it is signed by the
It is alleged in the complaint that Bell & Co. is a Hew Jersey •corporation, and succeeded to the business of a Hew York firm of the same name, the members of the old firm taking all the stock issued except one share issued to another party to qualify him for the office of director, and this share was in fact owned by the •defendant Dodge; that only forty shares of capital stock were issued, and of these the defendant Dodge at first took nineteen and •owned the other share which was issued in the name of the individual who became a director and subsequently bought ten more shares; that the plaintiff, at the instance of Dodge and on his agreement that no more capital stock should be issued, and on a guaranty •of reimbursement and of his employment as leading salesman at a salary of $5,000 per annum by the company, .purchased the remaining outstanding ten shares; that Dodge was 'elected president, the plaintiff vice-president and secretary, and later the plaintiff became secretary and treasurer, and, subsequently, owing to the illness of Dodge, general manager,, until the 1st day of February, 1903, from which time until the 29th day of February, 1904, he was president ■of the company on a salary of $6,000 per annum, owing to the fact that Dodge was ill and engaged in other business; that the defendant Dodge made an unauthorized claim against the company for ten per cent royalties on formulas which belonged to the company and took and appropriated to his own use ten per cent of the receipts in part payment of such claim; that on the 8th day of Febxuaiy, 1904, Dodge agreed that the plaintiff should be president for that year and receive a salary of $6,000, and that if the . sales -exceeded by $15,000 those of the previous year he should receive a salary of $7,000; that Dodge subsequently sold some of his «took and caused the plaintiff to be ousted from his position as president and general manager and himself to be elected president, and another secretary and treasurer; that this action was -taken by Dodge with the fraudulent purpose of destroying the plaintiff’s stock and reducing liis 'dividends; that Dodge is-in bad repute and ill-health and is incapacitated from performing the duties of president; that the place of business of the corporation is Hew York city, and it has its bank account there, and all its officers
The demurrer is upon the ground,, among others, that causes of action have been improperly united in the complaint. We are of opinion that the plaintiff has united in this complaint in one count at least two causes of action, one against the defendant Dodge for a, breach of contract and the other for corporate moneys wrongfully appropriated by Dodge to his own use. The former belongs to the plaintiff in his individual right, but the latter belongs to the corporation and may only be maintained by the corporation or by a stockholder in its behalf. It is clear that such causes of action cannot be united in one complaint.
Without, therefore, considering the other grounds of demurrer to-this inartificially drawn complaint, we are of opinion that the appeal from the order should be dismissed and the interlocutory judgment, should be. affirmed, with costs, with leave to plaintiffs to amend their complaint upon payment of costs in this court and in the court below..
Van Brunt, P. J., Patterson, Ingraham, and .McLaughlin, JJ.,, concurred.
Appeal from order dismissed. Interlocutory judgment affirmed, tvith costs, with leave to plaintiff to amend on payment of costs in this court and in the court below.