statement of it, and he says that he did get a tenant for such a piece of property, and you (the defendant) deny that he did so get a tenant, and the real question at issue is did the minds of the defendant and the Shuberts meet upon that piece of property mentioned and described here." No objection was taken to this statement and summary of the dispute between the parties, and the court thereupon proceeded to submit the case to the jury in accordance with the statement thus made. We call attention thus specifically and somewhat at length to what took place at the close of the case, because outside of this, considerable vagueness and indefiniteness characterized the proofs and the contentions of the parties. The amendment and statement of the issues as allowed and made by the court and accepted by the litigants, furnishes a very definite and simple test by which to review the trial and proceedings which are now criticised by the plaintiff. The specific question was whether plaintiff's firm brought defendant and a firm of theatrical managers known as "Shubert Bros." to an agreement for a lease of the premises described in Exhibit 8.

We

The learned Appellate Division in effect held that defendant was entitled to a dismissal of the complaint as a matter of law because there was no evidence to sustain the proposition that plaintiff had procured a tenant of the premises who was acceptable to the defendant; that as a matter of law the Shuberts and the defendant never agreed upon the terms of a lease, and therefore plaintiff never earned his commissions. do not think that it is necessary to go to this extent in order to affirm the judgment which has been rendered against plaintiff. We think, however, that there certainly was evidence from which a jury might find as a matter of fact that the parties had never agreed upon the terms of a lease, and if this is so, it is our duty to affirm the judgment. The testimony of the defendant's witnesses is to the effect that while upon October 3, 1901, defendant and the proposed tenants had agreed upon the details of the lease which the latter were ready to execute, the underlying question still remained to be determined by the defendant whether it would or would not rent the premises upon these terms and that subsequently it decided this question in the negative. Isolated expressions may be picked out from the testimony which would bear a different construction; but, taken as a whole, the evidence presented the view stated for the consideration of the jury which adopted it.

Various errors are alleged in connection with the charge of the learned trial justice, but we think that none of these requires a reversal. The issue as framed by him and accepted by the parties was fairly and intelligibly submitted to the jury. While the aumerous requests upon the part of plaintiff's

counsel for instructions and the somewhat extended colloquies which took place between the court and the jury at times resulted in some confusion of expression, we do not think that this was sufficient to materially obscure the substantial and simple issue, which was submitted for the verdict of the jury.

The judgment appealed from should be affirmed, with costs.

CULLEN, C. J., and GRAY, O'BRIEN, BARTLETT, WERNER, and CHASE, JJ.,

concur.

Judgment affirmed.

(184 N. Y. 114)

HINKLE et al. v. ZIMMERMAN. (Court of Appeals of New York. Feb. 16, 1906.) ARBITRATION AND AWARD - OATH BY ARBITRATORS.

Code Civ. Proc. § 2369, providing that arbitrators selected, as prescribed in the title, or otherwise, must be sworn unless the oath is waived, applies to arbitrators selected under a common-law arbitration, and such oath is not waived by Code Civ. Proc. c. 17, tit. 8, § 2386, providing that the chapter shall not affect common-law arbitrations, "except as otherwise specially provided."

[Ed. Note. For cases in point, see vol. 4, Cent. Dig. Arbitration and Award, §§ 141-146.] Appeal from Supreme Court, Appellate Division, First Department.

Submission of controversy between Eugene E. Hinkle and Jacob A. Zimmerman. From a judgment (92 N. Y. Supp. 1128, 102 App. Div. 616), affirming a judgment setting aside an award in favor of defendant, he appeals. Affirmed.

Benjamin G. Paskus and Gibson Putzel, for appellant. James W. McElhinney, for respondents.

HAIGHT, J. This action was brought to set aside an award made by arbitrators and an umpire, under a submission of a controversy between the parties hereto, upon the ground that neither the arbitrators nor the umpire took the required statutory oath before entering upon their duties.

The trial court found as facts that the plaintiffs did not know that neither the arbitrators nor umpire had taken the required statutory oath until after the rendition of the said umpire's decision; and that the taking of the required oaths was not waived by the written or verbal consent of the parties or their attorneys, and as conclusion of law that the award rendered was null and void, and should be set aside. The appellant contends that the award made was upon a common-law arbitration, and that under the evidence the trial court should have found that the oaths of the arbitrators and umpire were waived by the conduct of the parties. We think that the evidence justifies the finding

of the trial court, but inasmuch as a question of law is raised with reference to the construction of the Code of Civil Procedure upon the subject we have concluded to determine that question.

It may be conceded that the provisions of chapter 17, tit. 8. of the Code of Civil Procedure, generally, have reference to statutory arbitrations. The concluding clause of section 2386 is that "except as otherwise expressly prescribed therein, this title does not affect a submission made otherwise than as prescribed therein, or any proceedings taken pursuant to such a submission, or any instrument collateral thereto." As we understand this provision, it was not intended to affect common-law arbitrations "except as otherwise expressly prescribed." It is thus apparent from the exception contained in the provision that there are

sions, of the Code, will find it no more difficult to comply with the provisions of this section than that of any other section. We regard the added provisions as wise and beneficial. It will tend to relieve the courts and suitors of the numerous motions which were formerly made to set aside reports by reason of irregularities similar to the one under consideration. Under the former practice, the question as to whether there was or was not a waiver was usually controverted, and had to be determined upon affidavits read upon the motion. This is now disposed of by the provision of the Code, which requires such waiver to be established by the written consent of the parties or their attorneys." In that case we also considered that of Cutter v. Cutter, 48 N. Y. Super. Ct. 470, which had reference to a common-law arbitration there

include and apply to common-law arbitrations. Such an exception is to be found in section 2383, which provides that "a submission to arbitration, made either as prescribed in this title or otherwise, cannot be revoked," etc. This provision was considered in the case of N. Y. L. & W. W. Co. v. Schnieder, 119 N. Y. 475, 478, 24 N. E. 4, and it was held that the words "or otherwise" necessarily included common-law submissions to arbitration. We also are of the opinion that another exception is to be found in the provisions of section 2369, which provides that "before hearing any testimony, arbitrators selected either as prescribed in this title or otherwise must be sworn, by an officer designated in section 842 of this act, faithfully and fairly to hear and examine the matters in controversy, and to make a just award, according to the best of their understanding; unless the oath is waived by the written consent of the parties to the submission or their attorneys." The words "or otherwise" herein referred to indicate a legislative intent to extend the requirement, that an arbitrator should be sworn, not only to those selected under the provisions of the title, but as well to those selected under a common-law arbitration. This being so, it follows that they must be sworn unless the oath is waived by the written consent of the parties to the submission or their attorneys.

The provision with reference to the waiving of the oath was inserted in the revision of the Code in 1880. In considering it in the case of Flannery v. Sahagian, 134 N. Y. 85, 90, 31 N. E. 319, we said: "It appears to us that the clause referred to in section 2369 of the Code was intended to provide a rule of evidence from which the question of waiver may be determined. The evidence required to establish such waiver is the written consent of the parties or their attorneys. This requirement is not harsh or unjust. Parties who wish to submit their controversies to arbitration under the provi

on that ground. But we have now reached the conclusion that we should go farther and expressly overrule the determination in that case so far as this question is concerned, and that the same rule with reference to evidence required in determining whether or not there was a waiver of the oaths of the arbitrators should apply to common-law arbitrations, as well as to those provided by the statute. The reasons for it are apparent; the parties in this case have engaged in a long and expensive litigation through the courts, which, under the provisions of the section referred to, would have been obviated had the question been determined by the written stipulation of the parties or their attorneys.

The judgment should be affirmed, with costs.

CULLEN, C. J., and GRAY, EDWARD T. BARTLETT, VANN, WILLARD BARTLETT, and CHASE, JJ., concur.

Judgment affirmed, etc.

(184 N. Y. 117) THOMPSON et al v. WITTKOP, Treasurer, et al. (Court of Appeals of New York. Feb. 16, 1906.)

PLEADING-ANSWER-DENIAL-SUFFICIENCY.

Where plaintiff sued for seats furnished a church at the request of defendants and the denial in the answer was "and for a second and further separate defense this defendant further denies all the allegations contained in folios 4 and 5 of said complaint, except as hereinafter expressly specifically admitted or otherwise alleged, denied, and controverted," followed by a separate defense to the effect that the seats were furnished under an agreement for $3 for each seat, and that the same had been paid, is not subject to objection under Code Civ. Proc. § 500, as not containing any general denial of the allegations of the complaint; the proper remedy of plaintiff being by a motion to have the answer made more specific and certain.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by James S. Thompson and others against Henry Wittkop, treasurer of Saint Andrews Church Society, and others. From an order of the Appellate Division (90 N. Y. Supp. 1116, 97 App. Div. 642), reversing the judgment for defendant, Wittkop appeals. Reversed.

D. E. Brong, for appellant. Ray M. Stanley, for respondents.

HAIGHT, J. The order of reversal as entered by the Appellate Division was solely upon the ground that the answer did not contain any general or specific denial of the allegations of the complaint in conformity with the requirements of section 500 of the Code of Civil Procedure. The cause of action set forth in the complaint was for seats furnished a church at the special instance and request of the defendant, for which the plaintiff was to be paid what the same were fairly and reasonably worth. The denial contained in the answer is as follows: "And for his second and further separate defense this defendant further denies all the allegations contained in folios 4 and 5 of said complaint, except as hereinafter expressly specifically admitted, or otherwise alleged, denied, and controverted." Then follows the third allegation of the answer as a separate defense to the effect that the seats were furnished to the church under an agreement to pay $3 for each seat, and that the same had been paid for in full.

While we have examined all of the authorities cited by counsel in this case bearing upon the question, we shall not here allude to them or attempt to harmonize them further than to state that we have found none which we regard as controlling upon this court. Before the Code, pleadings were strictly construed against the pleader, but under the Code they "must be liberally construed with a view to substantial justice between the parties." Code Civ. Proc. § 519. No particular form of denial of the allegations of the complaint is prescribed. The denial, however, should be clear and specific, such as to at once apprise the parties and the court of the matter controverted. The form used by the defendant in this case is not to be commended. It is about as cumbersome as any that could well be devised, and has often been severely criticised by the courts. The original folios upon a complaint are almost always changed in the record made up for review, and consequently it then becomes impossible for the Appellate Court to determine the matter controverted. In many cases the form of denial used might be so indefinite and uncertain as to leave a doubt as to the allegations of the complaint intended to be put at issue; but in such cases we doubt the propriety of treating the denial as a nullity, and thereby depriving the party

of his right to trial or to amend his pleadings. We think the better practice is to move to have the pleading more specific and certain.

In this case the original folios are given. The denial is as to the allegations contained in folios 4 and 5. Folio 4 begins with a paragraph of the complaint, and that folio and the one which follows it embraces all of the remaining allegations of the complaint down to the demand for judgment, so that there is no chance for misunderstanding as to the matter denied in that regard. The allegation which follows, to the effect that the contract was to pay a definite sum agreed upon for each seat furnished, is also so clear and specific as to leave no room for doubt as to the issue raised for trial. We therefore are of the opinion that the pleading in this case as construed by the trial court afforded "substantial justice between the parties."

The order of the Appellate Division should be reversed and the judgment entered upon the verdict affirmed, with costs in all courts.

A stockholder of a corporation brought an action against it and two other defendants, to have certain certificates of stock and certain mortgage bonds adjudged void, or that the lastnamed defendants should pay the value thereof to the company. Held, he must allege in his complaint a cause of action in favor of the company of which he is a stockholder, and also facts authorizing his intervention and the maintenance of the suit in behalf of the corporation. 3. ACTION-MISJOINDER OF CAUSES.

A complaint, in an action by a stockholder, against the corporation and two other defendants, stated a cause of action in favor of the corporation in one count, but no cause of action in the second count. The two transactions set forth were independent of each other, and there was no allegation that they were entered into in pursuance of any common design. Held to constitute separate causes of action, within Code Civ. Proc. § 484, authorizing a demurrer on the ground of misjoinder of causes. 4. MOTIONS-ORDER-CONCLUSIVENESS.

Where, in an action by a stockholder against a corporation and two other defendants, the special term denied a motion by the defendants for an order requiring plaintiff to separately state and number his two causes of action, on the ground that there was but one cause of action, such motion did not conclude them from demurring to the complaint for misjoinder of

causes.

5. CORPORATIONS-ACTION BY STOCKHOLDERPLEADING-DEMAND.

Where the complaint in an action by a stockholder against a corporation, states a good cause of action in favor of the corporation against the other defendants named, but does not allege a demand that the corporation should prosecute the action against such defendants, nor state facts sufficient to relieve plaintiff from making such demand, it fails to state a cause of action.

Appeal from Supreme Court, Appellate DIvision, Third Department.

Action by Thomas O'Connor against the Virginia Passenger & Power Company and others. From an order of the Appellate Division (95 N. Y. Supp. 1149, 107 App. Div. 630), affirming an interlocutory judgment, overruling demurrers to the complaint (92 N. Y. Supp. 525), defendants appeal. Reversed.

The following questions were certified: First. Is there defect of parties defendant, as alleged in the defendants' demurrers? Second. Have causes of action been improperly united, as alleged in defendants' demurrers? Third. Does the complaint state facts sufficient to constitute a cause of action?

Lewis E. Carr, George W. Wickersham, Henry W. Anderson, and Charles A. Gardiner, for appellants. John L. Hill, for respondent.

CULLEN, C. J. This action is brought by a stockholder of the Virginia Passenger & Power Company to redress certain wrongs alleged to have been inflicted on that company by the defendants Frank and Helen Gould. and to have certain certificates of shares of the capital stock of said company and certain of its mortgage bonds held by said defendants adjudged void, or in lieu thereof that the said defendants pay the company their value. The complaint is inartificially drawn and is so voluminous, and most of the questions presented on this appeal are of so little general interest or application, as not to warrant us in incumbering the reports with the details of the charges. It is sufficient that we state our conclusions on the points raised by the demurrers and give briefly our reasons therefor.

The several grounds of the demurrers are: First, that there is a defect of parties defendant; second, that separate causes of action are improperly joined; and, third, that the complaint does not state facts sufficient to constitute a cause of action. The first ground of demurrer is based on the demand found in the prayer for relief that the directors of the power company, who committed the unlawful acts alleged, be held responsible for any loss or deficiency occasioned by their conduct. As it is not even stated in the complaint who these directors were, nor are they made parties to the action, it seems rather difficult to imagine on what theory such relief was asked. Nevertheless, as their presence is in no way

The other grounds of demurrer can be most readily considered together. The claim of the plaintiff being derivative, he was required to allege in his complaint: First, a good cause of action in favor of the Virginia power company; second, facts which authorized his intervention and the institution of his suit in behalf of his corporation. Kavanaugh v. Commonwealth Trust Co., 181 N. Y. 121, 73 N. E. 562. The grievances of which the complaint complains are two: First, a transaction by which a large part of the capital stock of the power company was acquired by the defendant the Atlantic Development Company, under a contract by which the latter company was to market the mortgage bonds of the power company at a specified rate, which stock, on the abrogation of the contract, was assigned to the defendants Gould instead of being restored to the corporation. As to this we think the complaint does state a good cause of action in favor of the defendant power company. The second transaction is one by which the defendant Frank Gould acquired certain bonds of the power company, pledged as collateral to secure the payment of the two notes of that company. We are inclined to the view that the complaint does not state a good cause of action in regard to this matter. It is alleged that Frank Gould acquired the notes and collateral by assignment from the payee or holder thereof. We cannot see what there was illegal in this. It is alleged that the corporation was able to pay and discharge the notes, but it is not alleged that it did so or even tendered payment. Part of the relief asked is that Frank Gould pay the difference between the market value of the bonds and the sum he paid for them. The corporation, however, can be entitled to no such relief. Gould stands in the same position as his assignor, the original pledgee of the bonds, and he is entitled to hold them until the debt to him is satisfied. But though the allegations of the complaint do not state a good cause of action as to this transaction, still we think it is a separate cause of action within the Code and rules of pleading. If in an indictment two offenses are intended to be set out in a single count, the indictment is bad for duplicity, even though one of the offenses is set out defectively. Dawson v. People, 25 N. Y. 399. Under section 484 of the Code of Civil Procedure separate causes of action can be united only when they affect all the defendants. As far as appears on the face of the complaint the two matters of which the plaintiff complains were independent transactions having no connection the

one with the other. It is not alleged that they were committed in pursuance of any common design or agreement to defraud or injure the corporation. The second cause of action relates solely to Frank Gould. Helen Gould is not charged to have in any way participated therein. The respondent contends that the appellants are concluded by an adverse decision of a motion made by them to compel him to separately state and number his two causes of action. The motion was denied by the Special Term on the ground that there was but one cause of action. The appellants, however, are not concluded by a decision on the question of practice, for "if the complaint contains several causes of action improperly united contrary to the Code as is claimed, the vice may be reached by a demurrer, and the failure of the plaintiff to state them separately and number them would not be an answer to it, nor would a failure to move to correct the complaint in this respect defeat the effect of a demurrer." Goldberg v. Utley, 60 N. Y. 427. Therefore, the objection that several causes of action are improperly united is well taken. But though, as we have held, the complaint does state a good cause of action in favor of the power company against both Frank and Helen Gould, we think it fails to state facts sufficient to constitute a cause of action in the plaintiff's favor. In a derivative action of the character of the present one "the complaint should allege that the corporation, on being applied to, refused to prosecute, and that this averment constitutes an essential element of the cause of action." Flynn v. Brooklyn City R. Co., 158 N. Y. 493, 53 N. E. 520 Greaves v. Gouge, 69 N. Y. 154. The complaint alleges no such demand or refusal. The general rule is subject to this exception, that where facts are alleged showing that the demand would be unavailing, a demand is unnecessary. Morawetz on Corporations, § 242; Brinckerhoff v. Bostwick, 88 N. Y. 56; Barr v. N. Y., Lake Erie & W. R. Co., 96 N. Y. 444. We are thus brought to the most serious question in the case, whether the allegations of the complaint are sufficient to relieve the plaintiff from first applying to the corporation for redress of his wrongs. In this long complaint there are but three allegations relied on for that purpose. It is alleged that after the abrogation of the contracts between the Virginia company and the Atlantic Development Company, and the acquisition by the Goulds of the stock issued to the development company, the Goulds, in February, 1904, caused the election of the board of directors "subservient to the domination and dictation of said defendants." It is also alleged that the "company by its board of directors, acting fraudulently and collusively and under the domination of Frank Gould," issued various amounts of mortgage bonds to the Goulds at an inadequate price. If the complaint alleged that the directors

of the corporation at the time of the commencement of the suit were the same as those who had committed the wrongs for which the suit is brought, it would relieve the plaintiff from making any demand on the corporation, for it may be assumed that such directors would not prosecute or, at least, not prosecute in good faith an action based on their own misconduct. But the complaint makes no such allegation, and, at least by inference, charges the reverse. It is alleged that the Goulds, in February, 1904, by virtue of the acquisition of the stock, elected the board of directors. But the wrongful acts complained of were committed, not by that board, but by its predecessor, and there is nothing to show that the two boards were composed of the same individuals. Nor is the allegation that the new directors were "subservient to the domination and dictation of said Frank Jay Gould and Helen Miller Gould" sufficient to prove that they would not prosecute against the Goulds a well-founded cause of action. It is not necessarily through dishonest or improper motives that persons may be subject to the domination and dictation of others. If the directors were the same as those who committed the wrongs, or if they were acting fraudulently, dishonestly, or collusively with the Goulds for thè purpose of defrauding the corporation in the latter's interest, it was very easy to say so, and there is no reason why the charge should not be explicitly and unequivocally made. In Brewer v. Boston Theater, 104 Mass. 378, the allegation was "that the present board of directors of said defendant corporation are united in the interest of and under the control of said Tompkins and Thayer." This was held insufficient, the Supreme Court saying: "It does not show that such an application upon a suitable representation of facts, would prove unavailing." It is true that under the rules for the construction of pleadings prevailing in this state great latitude is permitted and inferences generously indulged in to support a pleading. It may well be doubted whether we have not carried this liberality too far, and set a positive premium on bad pleading, oftentimes with the result that the worst pleading is the most difficult to meet or answer.

The orders of the Appellate Division and of the Special Term should be reversed, and judgment rendered for the defendants on demurrer, with costs in all the courts, with leave to the plaintiff to serve an amended complaint within 20 days on the payment of such costs. The first and third questions certified should be answered in the negative, and the second question answered in the affirmative.

O'BRIEN, HAIGHT, VANN, WERNER, BARTLETT, and HISCOCK, JJ., concur.

Ordered accordingly.