Vogt v. Vogt

104 N.Y.S. 164 | N.Y. App. Div. | 1907

Gaynor, J.:

It is not strange that the complaint was dismissed by the learned trial judge for not stating facts sufficient. It is filled with so much immaterial verbiage, and is so crude and unscientific, that it cannot be understood without painful scrutiny, and that should never be imposed on a trial judge. A complaint should be lean of everything except a plain and concise statement of the. facts constituting •the cause of action.

Discarding all irrelevant matter, the complaint does, after a fashion, allege that the stock of the Henry Vogt Manufacturing Company was $120,000, of which the plaintiff’s husband owned $60,000, and his brothers, the defendants Charles and William Vogt, tlie rest; that the plaintiff’s husband died, and.she succeeded to the ownership of his stock ; that her said two brothers-in-laW, and their lawyer, defendant Watson, represented to the plaintiff that the company was insolvent, and thereby induced, her to unite with them in a petition for the dissolution of the company, she believing the same ; that the representation was false, and known by them to be false, and was made to induce the plaintiff to join in a dissolution of the company, so as to enable the said defendants Charles and William Vogt to acquire and succeed to the business of the company after such dissolution ; that they did organize a new company," with the fourth defendant, John Vogt, and acquire and continue the said business; and that the .plaintiff’s stock was thereby made valueless. Ho fraud is alleged against John Vogt.

The. foregoing is -a good cause of action for fraud against all of the defendants except John Vogt. The contention that the judgment of dissolution on the ground of insolvency is res adjudicate that there' was no fraud is groundless. The question of fraud presented by the complaint was not embraced in any issue in the dissolution proceeding, or necessarily involved therein. The contention that if there be any such cause of action it belongs to the company is also groundless. The. wrong complained of is a particular wrong to the plaintiff.

The judgment should be reversed, and a new trial granted, except as to the defendant John Vogt. '

Hirsohberg, P. J., Woodward, Rich and Miller, JJ., concurred.

Judgment reversed and new trial granted as to the other defendants, costs to abide the -final award of costs.