p. 481ROWELL et al. v. JANVRIN.(Supreme Court, General Term, First Department.Headnote
Amendment oe Complaint—Action against Stockholder.Where a complaint seeks to charge defendant, as a stockholder in a manufacturing corporation, because of failure to file a certificate that the whole of the capital stock was paid in, as required by Laws 1848, c. 40, §§ 10, 11, it is error to permit an amendment seeking to enforce defendant’s liability under section 14 of the same act, referring to the purchase of property, and the issue of stock therefor.
Appeal from special term, ¡New York county.
Action by George P. Rowell and others against Joseph E. Janvrin. From an order allowing an amendment to the complaint, defendant appeals.
Argued before YA2T BRUNT, P. J., and FOLLETT and BARRETT, JJ.Richards & Heald, (Dickinson W. Richards and Austen G. Fox, of counsel,) for appellant.
Carpenter & Hassett, (Jonathan 0. Ross, of counsel,) for respondents.
We are of the opinion that the court erred in permitting the amendment of the complaint by the order appealed from. The cause of action sought to be set up by the amended complaint was entirely independent of, and had no relation to, that which had been alleged in the original complaint. In the original complaint a liability of a stockholder was sought to be enforced because of the failure to file a certificate that the whole of the capital stock had been paid in, under sections 10 and 11 of the manufacturers’ act. By the amended complaint a liability upon the part of the stockholder was attempted to be set up, arising from the provisions of section 14 of the same act, in reference to the purchase of property, and the issuing of stock therefor. These were distinct, independent grounds of a recovery, the only common feature being that in each the defendant was sought to
p. 482be charged as a stockholder. We think the court should not have ingrafted upon this action, in which the plaintiffs seemingly confess that they cannot succeed, an independent cause of action. The order appealed from should therefore be reversed, with $10 costs, and disbursements of this appeal, and the motion denied, with $10 costs.