Majority
p. 145N. Y. SUPERIOR COURT. Nelson J. Botsford agt. Charles C. Dodge and Anson Pond. Daniel B. Halstead agt. The Same. Special Term, June, 1883. 1st. The defect appears on the face of the complaint. The'allegation of the complaint that the company is a corporation organized, existing and.
Headnote
Complaint—Demurrer— Complaint in action against two out of three trustees of a manufacturing corporation not demurrable on ground, of defect of parties defendant—Allegation that corporation is duly organized does not allege the existence of any number of trustees— Code of Civil Procedure, sections 488,454.A complaint in an action against two out of three trustees of a manufacturing corporation, for a failure to file the annual report is not demurrable on the ground of a defect of parties defendant.
An allegation that the corporation is duly organized and existing, does not allege the existence of any number of trustees, although the statute requires three or more.
This action was brought against two trustees of a manufacturing corporation by a creditor of the company, to recover the amount of a debt due from it under section 12 of chapter 40 of the Laws of 1848, the company having failed to file its annual report.
A demurrer was interposed by the defendants on the ground that there was a defect of parties defendant, only two out of three trustees having been joined.
John E. Ward, for the demurrer:.
p. 146doing business under an act of the legislature, which requires three -or more trustees is a sufficient allegation of the existence .of the other trustees. 2d. The action is joint and several and therefore must be brought against one or against all the trustees (Strong agt. Wheaton, 38 Barb., 617 ; Dean agt. Wheaton, 16 Hun, 203 ). An allegation of incorporation under the manufacturing act does not incorporate into the complaint an allegation of the existence of any number of trustees (Smith agt. Ratburn, 22 Run, 150, 155.) The defect does not appear on the face of the complaint (Parsons agt. Tufts. 2 Monthly Law Bul., 13; Haines agt. Hollister, 64 N. Y., 1 ).
James B. Dill {Dill & Chandler, attorneys), in opposition.
Held, that an averment in a complaint of incorporation does not carry with it any allegation of the existence of any specific number of trustees, and although the law requires three or more trustees the court will not hold, without any specific allegation of the complaint, to that effect, that there existed any more trustees than are named in the "complaint; that the grounds of demurrer were not apparent on the face of the complaint, and the demurrers were overruled.