Mutual Life Insurance v. McCurdy — 118 A.D. 827

Majority

p. 827

The Mutual Life Insurance Company of New York, Respondent, v. Richard A. McCurdy and Robert H. McCurdy, Appellants.

First Department,

April 5, 1907.

Headnote

Pleading — action against president of corporation to recover moneys obtained pursuant to conspiracy — when complaint states single cause of action.

An action at law to recover moneys wrongfully abstracted from a corporation by its president and his son acting in concert in a preconceived plan to defraud ■ the corporation through ihe employment of the son on an unusual contract of agency made without authority at exorbitant commissions, etc., states but a single cause of action, although renewals of the agreements were made from time to time at increased commissions. Such acts are mere steps in the consummation of a single scheme or conspiracy to obtain moneys by fraud.

Appeal by the defendants, Richard A. McCurdy and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 13th day of Hovember, 1906, denying the defendants’ motion to strike out as irrelevant and redundant certain matters alleged in the complaint, and to have the complaint made more definite and certain, and the statement of facts constituting the several causes of action separately stated and numbered.

De Lancey Nicoll [Courtland V. Anable with him on the brief], for the appellants.

Joseph U. Choate [ James MoKeen and Joseph II. Choate, Jr., with him on the brief], for the respondent.

This is an action at law to recover various sums of money, aggregating $1,002,841.66, alleged to have been wrongfully abstracted from the plaintiff by the defendants, who are father and son, acting in concert and pursuant to a preconceived plan by which they fraudulently conspired and agreed at a time when the father was president of the company, to obtain, and did obtain, large sums of money from it for the benefit of the defendant Robert H. McCurdy, the son, through the employment of a firm of which he was a member, as an agent of the company, on an unusual contract of agency,

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made without authority; by which the firm was paid exorbitant commissions grossly in excess of the fair and reasonable compensation for the services rendered, and by the appointment of the defendant Robert H. McCurdy to the office of. superintendent of the foreign department of the plain tiff at an exorbitant salary, grossly in excess' of the fair and reasonable compensation for the services rendered. The allegations of the complaint aré sufficiently definite. Although renewals of the agreements from time to time at increased commissions are alleged, yet it is alleged that this was pursuant- to the original corrupt, fraudulent agreement and com spiracy, and, therefore, they merely constituted steps in the consuim mation of the single scheme, plan and purpose conceived at the outset to - wrongfully and fraudulently obtain the moneys from the company. The complaint states but á single cause- of action to recover the money's lost, to the company through the fraudulent acts of the defendants, acting in concert in executing a preconceived conspiracy to obtain the moneys from the company wrongfully and without authority. (People v. Tweed, 63 N. Y. 194 ; Bosworth v. Allen, 168 id. 157, 165 ; Mabon v. Miller, 81 App. Div. 10 .)

It follows that the order should be affirmed, with ten dollars costs and disbursements.

Patterson, P. J., Ingraham, Clarke and Scott, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.

Cases cited

People v. Tweed 63 N. Y. 194 N.Y. 1875-11-16 p. 828