Majority
p. 95CLEGG v. AIKENS. New York Supreme Court, First Department; Special Term, November, 1877.
Headnote
Pleading. —Panties. —Advektising Agencies. —Newspaper Unions. — Allegation oe Conclusion oe Law.A single action does not lie against several advertising agency corporations or associations, for the breach of a contract by their common agent, unless there is some statement in the complaint to connect them.
Where the complaint alleged that several newspaper union corporations together composed the American Newspaper Union, which was a corporation, and that the general agent of the latter agreed with plaintiff for the insertion of his advertisements in the several newspapers owned and controlled thereby, — Held, that the subordinate corporations, who were alleged to be the incorporators, were not proper parties to an action founded on the agreement.
Demurrer to complaint.
This action was brought by Charles A. Clegg, a general advertising agent, against eight defendants— six corporations, and two natural persons, viz: Andrew J. Aikens ; The American Newspaper Union ; The New York Newspaper Union ; The Chicago Newspaper Union; The Aikens Newspaper Union, now known as The Cincinnati Newspaper Union; The
p. 96
Southern Newspaper Union ; The Milwaukee Newspaper Union, and Ansel N. Kellogg.
The complaint, alleged: “ That five of these defendants, to wit: The American Newspaper Union; The Chicago Newspaper Union ; The Aikens Newspaper Union, now known as The Cincinnati Newspaper Union ; The Southern Newspaper Union, and The Milwaukee Newspaper Union, were, and still are, foreign corporations, doing and transacting a general advertising business, and that the time and place of their incorporation is unknown to plaintiff.
“That another defendant, to wit: The New York Newspaper Union, was and still is, a corporation created by, and existing under, the' laws of this State, and more particularly pursuant to the provisions of an act entitled, An Act to authorize the formation of corporations for manufacturing, mining, mechanical or chemical purposes,’ passed February 17, 1848, and the several acts amendatory thereto ; and that this defendant was, and still is, also engaged in the general advertising business.
‘ ‘ That of the remaining two defendants, to wit: Andrew J. Aikens and Ansel N. Kellogg; the former, Aikens, is one of the original incorporators of the defendant, The New York Newspaper Union, and that at the times afterwards mentioned in the complaint, and up to about the 15th day of January, 1877, he was president of each of the above mentioned corporations.
“That all these defendants, corporations, were collectively known, and designated as,- and composed, The American Newspaper Union, whereof the said defendant, Andrew J. Aikens, was president.
“That the defendant Ansel N. Kellogg, was, at the times mentioned in the complaint, and at the commencement of this suit, engaged in the general advertising business in the city of Chicago, State of Illinois,
p. 97
and at all such times, was the proprietor of ‘A. N. Kellogg’s Chicago List.’
“That one Edward W. Poster was the general agent of said ‘The American Newspaper Union,’ and ‘A. N. Kellogg’s Chicago List,’ on June 1,1873, and continued to act as such until January 2, 1877, at the city of New York.
“That on or about June 10, 1873, negotiations were entered upon between plaintiff and Poster, as such agent, and on investigation the same day, Poster promised plaintiff that he should have as low rates for advertising in the papers represented by Poster, as any other agent, agency or advertiser.
“ That plaintiff, relying on such arrangement, at different times between June 10, 1873, and May 1, 1876, gave to Poster, as agent as aforesaid, orders for the insertion of advertisements in the newspapers represented by Poster, amounting in gross value to the sum of about $200,000.
“That at various times when plaintiff gave Poster, as agent, such orders, Poster represented to plaintiff that he was receiving as low rates as any other, and even lower than any one else.
“That in fact such representation was false. That during this period, lower rates were allowed to sundry others in New York, Philadelphia, and elsewhere.
“ That by reason thereof, plaintiff sustained loss and injury in his business, and was induced to pay money to defendants which he was not bound to pay, and which was unlawfully and fraudulently exacted, demanded, and received from plaintiff by defendants, to plaintiff’s damage $28,000.”
Judgment was demanded for that sam.
The defendant, The New York Newspaper Union, demurred on grounds indicated below.
Chauncey B. Ripley, in support of the demurrer.
p. 98
I. The complaint is bad on demurrer, because two causes of action have been improperly united, viz. : (1.) One arising on an alleged contract with Foster, as agent of the American Newspaper Union, and (2.) another arising on an alleged contract with Foster as agent of A. N. Kellogg’s list. Any cause of action arising under the former, would not affect the defendant Kellogg, as proprietor of the Chicago list; nor would a cause of action arising under the latter, affect any defendant except such proprietor. It must appear upon the face of the complaint that all the causes of action united in the same complaint affect all the parties (Code of Civil Procedure, § 484, subd. 9). And this defect is alike fatal whether plaintiff seeks to sustain his complaint" on a cause of action arising ex contractu, or ex delicto, (a.) If arising on contract. 1. That the alleged cause or causes of action arise ex contractu, and not ex delicto, is distinctly held in a recent similar case (Holtz v. Schmidt, 59 N. Y. 257 ). 2. If so, it is such a joinder as is not permissible under section 484 of the Code, above cited, because such cause does not affect all the parties defendant according to the requirement of that section of the Code. The Code has not changed the rule established under the old practice, “ but now, as before, the causes of action to be joined must be in favor of all the plaintiffs, and against all the defendants, and must belong to the same class” (Enos v. Thomas, 4 How. Pr. 50 ; De Ridder v. Schermerhorn, 10 Barb. 639 , affirming Enos v. Thomas, supra, and citing many cases). (b.) If founded in tort. Granting that the alleged cause or causes of action arise ex delicto, and that the fraud and deceit suggested in the complaint are properly pleaded; the complaint is still open to the same objection — improper joinder of causes of action; for that a union of wrong-doers, as parties defendant, may be possible, “there must be some com
p. 99munity in the wrong-doing among the parties who are to be united as co-defendants ; the injury must in some sense be their joint work” (Pomeroy’s Remedies, § 308, and cases cited). There are, therefore, two separate and distinct causes of action under the ex delicto theory, and the same fatal objection holds good — there is no allegation of community in the wrong-doing. The rule is the same, and the complaint is bad, whichever the theory, because of improper joinder of causes of action (Code of Civil Procedure, § 484, subd. 9). II. There is a defect of parties defendant, to wit: the original co-incorporators of the defendant, the New York Fewspaper Union, of which defendant Aikens is alleged to be one. 1. Organization under the statute referred to implies that there were three, at least, of the original'incorporators. Fo number less than three could effect an organization under the statute. The provision is “ three or more ” (Laws 1848, ch. 40). 2. If one is liable as an incorporator, all are. 3. It is a matter of interest to each defendant that all liable be made co-defendants, that they may contribute to the defense and satisfaction of any judgment obtained by plaintiff. 4. The remaining coincorporators are presumed to be living unless the complaint shows the contrary (Greenleaf on Evidence, § 41). 5. And demurrer is the proper means of raising the question (Code of Civil Pro. § 488, subd. 6; Eaton v. Balcom, 33 How. Pr. 80 ; Zabriskie v. Smith, 13 N. Y. 336 ).
III. Again, the complaint is radically defective in this. That it does not state facts sufficient to constitute a cause of action. Fo cause of action is stated in the complaint attaching to any of the defendants appearing, other than Kellogg and The American Fewspaper Union; for none of the defendants named can be held as parties to either of the contracts made by plaintiff with Foster as agent, unless it be Ansel F.
p. 100Kellogg and The American Newspaper Union corporation. They alone appear respectively as parties of the second part of the supposed agreements. Moreover, The American Newspaper Union must be one thing or the other — a corporation or not a corporation. If it is a corporation, those composing it should not be made defendants ; it should be sued in its corporate name only. If it is not a corporation, it should not be sued in its corporate name, but in some other way, according to the nature of its organization, — e. g., if a partnership, by joining the copartners ; if an association, unincorporated, other than a partnership, according to its nature, — but in no case in the form adopted in this action. Such form is an anomaly in pleading, and without authority (Allen v. Patterson, 7 N. Y. 476 , 478; Code of Civil Pro. § 481, subd. 2). IV. Admission, by the demurrer, of facts alleged in the complaint is qualified, and is only an admission on the argument. It admits the facts if well pleaded, but it admits no mere statement of a conclusion of law. No importance attaches to the terms so often occurring in complaint: “not lawfully,” “unlawfully,” “fraudulently,” “exacted,” and the like. They are insufficient, being conclusions of law merely. Such general allegations avail nothing. They are idle declarations, and not “constitutive” under the new code (§ 481, subd. 2). Butler v. Viele, 44 Barb. 166 ; Lefler v. Field, 52 N. Y. 622 ; Dubois v. Hermance, 56 Id. 674 .
W. W. Mac Farland (O' Dwyer & Noonan, attorneys), for plaintiff.
In this action two causes are improperly united:
One growing out of an arrangement made with Foster as the agent of the American Newspaper Union, and the other as agent of “A. N. Kellogg’s List.”
p. 101
There is no statement connecting “Kellogg’s List,” with the American Newspaper Union. For all that appears, they are entirely separate and distinct organizations. The American Newspaper Union is not liable for any damage incident to a breach of any agreement between plaintiff and Kellogg’s List or its agent. In this cause the complaint is demurrable.
I have already held, in the case of this same plaintiff against the American Newspaper Union and others, that the omission to make the original co-incorporations defendant is no valid objection.
It is alleged to be a corporation. As such it was the representative of its incorporators in the action.
And for this reason I think it was improper to make the defendant, The New York Newspaper Union, a party defendant.
The allegation is, that the several corporations named constituted the “American Newspaper Union,” of which Foster was agent.
In that view, the redress of the plaintiff is in the first instance against that corporation. No cause of action is therefore stated against the New York Newspaper Union upon which the plaintiff could recover in this action.
There should be judgment in favor of the defendant demurring, with liberty to plaintiff to amend upon payment of costs.
Cases cited
- Eaton v. Balcom 33 How. Pr. 80 p. 99
- Butler v. Viele 44 Barb. 166 p. 100