Rowell v. Janvrin — 53 N.Y. St. Rep. 312

Majority

p. 312

George P. Rowell et al., Resp’ts, v. Joseph E. Janvrin, App’lt.

(Supreme Court, General Term, First Department,

Filed May 12, 1893.)

Headnote

Pleading—Amendment of complaint—Action against stockholder.

An amendment of a complaint in an action against a stockholder of a-manufacturing company upon a liability by reason of failure to file the certificate that the capital stock had been paid in, by allowing a liability under § 14 of the act in reference to the purchase of property and the issuing of stock therefor, is erroneous, as the cause of action sought to beset, up is entirely independent of that alleged in the original complaint.

Appeal from an order of the court at special term, granting-leave to the plaintiff to serve an amended complaint.

Richards & Heald (Dickinson W. Richards and Austen G. Fox, of counsel), for app’lt; Carpenter & Hassett (Jonathan C. Ross, of counsel), for resp’ts.

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 §§ 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 § 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 eacli the defendant was sought to be 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.

Yah Brunt, P. J, Follett and Barrett, JJ., concur.