Majority
p. 376STERNE against HERMAN. Supreme Court, First District; Special Term, April, 1871.
Headnote
Pleading.—Complaint to Charge Stockholders and Trustees.In an action to charge defendants with an individual liability for the debt of a corporation, of which they were trustees, an allegation that they were also stockholders, is not irrelevant.
Individual liability of the same persons for the same debt, under different provisions of the same statute charging them as trustees and as stockholders respectively, does not constitute different causes of action.[1]
Motion to strike out part of a complaint.
Simon Sterne brought this action against A. S. Herman, and six others alleging, 1. That the New York Pengot Coal Co. was a corporation organized under the manufacturing companies act of 1848. 2. That at a time designated, one Weissenborn as a servant of the company rendered the services hereinafter stated. 3. That as .such laborer, he rendered services to the company at their request, at the agreed rate of one hundred and sixty-six dollars per month. 4. That on a day named there was due him from them, therefor, eight hundred and forty-two dollars and ninty-eight cents. 5. That within one year suit was brought therefor, in a court of general jurisdiction in New Jersey,—alleging jurisdiction, &c., and the recovery of judgment for one thousand two hundred and fifty dollars and seventy-six cents. 6. Execution against the company returned unsatisfied. 7. Assignment of
p. 377
the judgment to the present plaintiff. 8. That a balance of four hundred and sixty-five dollars and thirty-foul cents, with interest, was unpaid. 9. That defendants became the trustees of the company, January 7, 1867 (during the servant’s employment, and before the principal part of the debt accrued), and ever since continued such. 10. That the company made no report within twenty days of January 1, 1867, nor did they make or publish any such in 1867. 11, 12 and 13. That none was made or published for 1868, 1869 or 1870. 14. That thereby the said trustees, the defendants, have become jointly and severally liable for the debt.
15. That at the time said debt was contracted as aforesaid the defendants were stockholders of said company, holding stock therein to an amount far exceeding the amount of said debt, with its interest, and they are still such stockholders therein.
Wherefore plaintiff demanded judgment against defendants for the balance due.
The fifteenth allegation defendants moved to strike out as irrelevant.
Andrew J. Perry, for the motion.
Charles Goepp, opposed.
The plaintiff’s assignor having been a workman of' “The New York Fengot Coal Co.,” recovered a judgment against them for the amount due to him. The plaintiff seeks to obtain payment of the judgment from the defendants, and alleges that they were trustees and failed to make the return required by the provisions of the act authorizing their incorporation, by which they become liable for this debt of the company, and also that they were stockholders at the time the debt due to the plaintiff’s assignor was contracted, and claims that they are for that reason
p. 378
liable for such debt under the provisions of the act aforesaid. There is but one cause of action stated; The statement of different facts, either of which being established would render the plaintiffs liable, is not the union of two inconsistent causes of action. The right to maintain the one cause averred is predicated of different provisions of the sanje statute, namely, that the trustees omitted to file the return required, and were stockholders when the debt of the assignor for services as a laborer accrued. Although it may be that the causes of action are different, involving, it may be said, different kinds of evidence to sustain them, yet they rest upon provisions of the same statute and upon kindred proof, and it must not be overlooked that the trustees are required by that law to be stockholders (Laws of 1848, ch. 40, § 3). I think such a form of pleading in such a case is not objectionable under the Code (see Durant v. Gardner, 10 Abb. Pr., 445 ; Jones v. Palmer, 1 Id., 442 ; Smith v. Douglass, 15 Id., 266). The latter averment that the defendants are stockholders, may be regarded as one in support of the cause of action set out.
Motion denied, but without costs.