Hyperlawhypertext legal database Phillips v. Equitable Life Assurance Society of the United States 55 N.Y. St. Rep. 298

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Phillips v. Equitable Life Assurance Society of the United States

55 N.Y. St. Rep. 298 Court N.Y. Sup. Ct. Decision date 1893-12-06 English

Delivered by Ingraham, J.

Contents

Majority

p. 298
Lewis J. Phillips, Pl’ff, v. The Equitable Life Assurance Society of the United States, Def't.
(Supreme Court, Special Term, New York County,
Filed December 6, 1893.)

Headnote

1. Default—Non-service of complaint.
A motion to open a default for non-service of the complaint will not he granted where the plaintiff does not allege a cause of action.
"2. Same.
Nor will it he granted unless the plaintiff is ready to serve the complaint.
3. Same—Appeal.
A motion to compel the defendant to accept service of a notice of appeal served after default in the service of the complaint will not he granted.
4. Corporations—Parties.
Where a suit is brought against a corporation on the claim that certain of its trustees have committed a breach of trust, in order to sustain the complaint the trustees must he made parties with the corporation.
Motion made by the plaintiff to open a default for non-service ■of the complaint andoto compel defendants to accept service of a notice of appeal from the order denying the motion for discovery.
The claim of the plaintiff was that certain directors of the defendant had so conducted themselves as to make a profit out of their dealings on behalf of the defendant and for an accounting; but none of the defendants were made a party to the cause. The plaintiff was in default for non-service of complaint and moved to have that default opened, but did not produce any copy of the the complaint nor aver that they were able to draw one after the ■default had been made. The plaintiff served a notice of appeal from the order for discovery.
Allan McCulloh, for deft; Joseph B. Reily, for pl’ff

I think the motion made by the plaintiff should not be granted because no cause of action in favor of this plaintiff against this defendant is disclosed in the motion papers. The plaintiff is a stockholder in the defendant corporation, and it would appear that the object of the action is to compel the defendant (the corporation) to disclose certain alleged irregularities by which it is claimed the trustees have robbed, the corporation. The trustees are not parties defendant, and if the plaintiff does

p. 299
establish these facts he would have no remedy against the corporation which has been robbed. It seems to me to be useless to prolong such a litigation. The plaintiff does not allege that he is in a position to serve a complaint, and does not deny that the time has expired in which he was bound to serve a complaint in this action. He seeks, however, to. compel the defendant to accept a notice of appeal from an order denying his motion for a discovery when he was in default in the service of the complaint, and when the defendant was entitled to an order dismissing the action. The defendant also moves to dismiss the action for failure to serve the complaint, and that motion, I think, should be granted, with ten dollars to defendant.