New York Income Corp. v. Wells

Headnote

Pleading — misjoinder —• where demurrer for misjoinder of causes of action properly sustained.

N. Y. Income Corporation v. Wells (2 eases), 195 App. Div. 136 , affirmed.

Appeal, in each of the above-entitled actions, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered February 4, 1921, which reversed an order of Special Term overruling a demurrer to the complaint and sustained said demurrers in so far as they were for misjoinder. The grounds of the demurrers so far as sustained were as follows: That causes of action have been improperly united, in that there is a cause of action against the defendant company and Lawrence E. Blake which does not affect the other parties, and a cause of action against the defendant Wells for a breach of duty to the plaintiff and for fraud, and to require him'to surrender to it certain capital stock of the defendant company and demanding an injunction, all of which affect no other parties; and a cause of action by the plaintiff as a stockholder and another under sections 90 and 91 of the General Corporation Law as a creditor of the defendant company, to compel its directors to account for official action and for the appointment of a receiver; and another cause of action for the foreclosure of an assignment by the defendant company to the plaintiff of the pledge of certain rents and for a deficiency judgment against the individual defendants, and still another cause of action for the specific performance of an agreement between the plaintiff and the defendant company The

following question was certified in both cases: “ Does it appear upon the face of the complaint that causes of action have been improperly united? ”