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statement of it, and he says that he did get | counsel for instructions and the somewhat exa tenant for such a piece of property, and tended colloquies which took place between you (the defendant) deny that he did so get the court and the jury at times resulted in a tenant, and the real question at issue is some confusion of expression, we do not did the minds of the defendant and the Shu- think that this was sufficient to materially berts meet upon that piece of property men- | obscure the substantial and simple issue, tioned and described here," No objection was | which was submitted for the verdict of the taken to this statement and summary of the jury. dispute between the parties, and the court. The judgment appealed from should be thereupon proceeded to submit the case to affirmed, with costs. the jury in accordance with the statement thus made. We call attention thus specifical CULLEN, C. J., and GRAY, O'BRIEN, ly and somewhat at length to what took BARTLETT, WERNER, and CHASE, JJ.. place at the close of the case, because out concur. side of this, considerable vagueness and indefiniteness characterized the proofs and the Judgment affirmed. contentions of the parties. The amendment and statement of the issues as allowed and made by the court and accepted by the liti

(184 N. Y. 114) gants, furnishes a very definite and simple

HINKLE et al. V. ZIMMERMAN. test by which to review the trial and proceed (Court of Appeals of New York. Feb. 16, 1906.) ings which are now criticised by the plaintiä. ARBITRATION AND AWARD - OATH BY ABBIThe specific question was whether plaintiff's

TRATORS.

Code Civ. Proc. $ 2369, providing that firm brought defendant and a firm of theatri

arbitrators selected, as prescribed in the title, or cal managers known as “Shubert Bros." to an otherwise, must be sworn unless the oath is agreement for a lease of the premises describ waived, applies to arbitrators selected under & ed in Exhibit 8

common-law arbitration, and such oath is not

waived by Code Civ. Proc. c. 17. tit. 8. $ 2386. The learned Appellate Division in effect

1 providing that the chapter shall not affect comheld that defendant was entitled to a dismis mon-law arbitrations, "except as otherwise sal of the complaint as a matter of law

specially provided." because there was no evidence to sustain the

(Ed. Note.-For cases in point, see vol. 4,

Cent. Dig. Arbitration and Award, 88 141-146.) proposition that plaintiff had procured a ten. ant of the premises who was acceptable to

Appeal from Supreme Court, Appellate the defendant; that as a matter of law the Division, First Department. Shuberts and the defendant never agreed Submission of controversy between Euupon the terms of a lease, and therefore

gene E. Hinkle and Jacob A. Zimmerman. plaintiff never earned his commissions. We From a judgment (92 N. Y. Supp. 1128, 102 do not think that it is necessary to go to App. Div, 616), affirming a judgment setting this extent in order to affirm the judgment aside an award in favor of defendant, be which has been rendered against plaintiff. appeals. Affirmed. We think, however, that there certainly was Benjamin G. Paskus and Gibson Putzel, evidence from which a jury might find as for appellant. James W. McElhinney, for rea matter of fact that the parties had never spondents. agreed upon the terms of a lease, and if this is so, it is our duty to affirm the judgment. HAIGHT, J. This action was brought to The testimony of the defendant's witnesses | set aside an award made by arbitrators and is to the effect that while upon October 3, an umpire, under a submission of a con1901, defendant and the proposed tenants troversy between the parties hereto, upon had agreed upon the details of the lease the ground that neither the arbitrators nor which the latter were ready to execute, the the umpire took the required statutory oath underlying question still remained to be de before entering upon their duties. termined by the defendant whether it would The trial court found as facts that the or would not rent the premises upon these plaintiffs did not know that neither the arterms and that subsequently it decided this bitrators nor umpire had taken the required question in the negative. Isolated expres statutory oath until after the rendition of the sions may be picked out from the testimony said umpire's decision; and that the taking which would bear a different construction; of the required oaths was not waived by but, taken as a whole, the evidence presented the written or verbal consent of the parties the view stated for the consideration of the or their attorneys, and as conclusion of law jury which adopted it.

that the award rendered was null and void, Various errors are alleged in connection and should be set aside. The appellant conwith the charge of the learned trial justice, tends that the award made was upon a combut we think that none of these requires a mon-law arbitration, and that under the evireversal. The issue as framed by him and dence the trial court should have found that accepted by the parties was fairly and in the oaths of the arbitrators and umpire were telligibly submitted to the jury. While the waived by the conduct of the parties. We numerous requests upon the part of plaintiff's think that the evidence justifies the finding of the trial court, but inasmuch as a ques. 1 sions, of the Code, will find it no more diffition of law is raised with reference to the cult to comply with the provisions of this construction of the Code of Civil Procedure section than that of any other section. We upon the subject we have concluded to de regard the added provisions as wise and termine that question.

beneficial. It will tend to relieve the courts It may be conceded that the provisions of and suitors of the numerous motions which chapter, 17, tit. 8. of the Code of Civil Pro were formerly made to set aside reports by cedure, generally, have reference to stat reason of irregularities similar to the one utory arbitrations. The concluding clause of under consideration. Under the former section 2386 is that "except as otherwise ex practice, the question as to whether there pressly prescribed therein, this title does not was or was not a waiver was usually conaffect a submission made otherwise than as troverted, and had to be determined upon prescribed therein, or any proceedings taken affidavits read upon the motion. This is pursuant to such a submission, or any in now disposed of by the provision of the strument collateral thereto." As we under Code, which requires such waiver to be stand this provision, it was not intended to established by the written consent of the affect common-law arbitrations "except as parties or their attorneys.” In that case we otherwise expressly prescribed.” It is thus also considered that of Outter v. Cutter, 48 apparent from the exception contained in N. Y. Super. Ct. 470, which had reference the provision that there are provisions to to a common-law arbitration and we, therebe found in the title that were intended to fore, held that it was distinguishable upinclude and apply to common-law arbitra on that ground. But we have now reached tions. Such an exception is to be found in the conclusion that we should go farther and section 2383, which provides that "a submis expressly overrule the determination in that sion to arbitration, made either as prescrib case so far as this question is concerned, and ed in this title or otherwise, cannot be re that the same rule with reference to evivoked," etc. This provision was considered dence required in determining whether or in the case of N. Y. L. & W. W. Co. v. Schnie not there was a waiver of the oaths of the der, 119 N. Y. 475, 478, 24 N. E. 4, and it arbitrators should apply to common-law arwas held that the words “or otherwise" nec bitrations, as well as to those provided by essarily included common-law submissions | the statute. The reasons for it are apparto arbitration. We also are of the opinion ent; the parties in this case have engaged in that another exception is to be found in the a long and expensive litigation through the provisions of section 2369, which provides courts, which, under the provisions of the that "before hearing any testimony, arbi section referred to, would have been obviattrators selected either as prescribed in this ed had the question been determined by the title or otherwise must be sworn, by an written stipulation of the parties or their officer designated in section 842 of this act, attorneys. faithfully and fairly to hear and examine The judgment should be affirmed, with the matters in controversy, and to make a

costs. just award, according to the best of their understanding; unless the oath is waived by CULLEN. C. J.. and GRAY. EDWARD the written consent of the parties to the sub- | T. BARTLETT, VANN, WILLARD BART. mission or their attorneys." The words "or LETT, and CHASE, JJ., concur. otherwise" herein referred to indicate a legislative intent to extend the requirement, Judgment afirmed, etc. that an arbitrator should be sworn, not only to those selected under the provisions of

(184 N. Y. 117) the title, but as well to those selected under a common-law arbitration. This being so, it

| THOMPSON et al v. WITTKOP, Treasurer, follows that they must be sworn unless the

et al. oath is waived by the written consent of the

(Court of Appeals of New York. Feb. 16,

1906.) parties to the submission or their attorneys.

PLEADING-ANSWER-DENIAL-SUFFICIENCY. The provision with reference to the waiv

Where plaintiff sued for seats furnished a ing of the oath was inserted in the revision

church at the request of defendants and the of the Code in 1880. In considering it in denial in the answer was "and for a second the case of Flannery v. Sahagian, 134 N. Y.

and further separate defense this defendant 85, 30, 31 N. E. 319, we said: "It appears

| further denies all the allegations contained in

| folios 4 and 5 of said complaint, except as to us that the clause referred to in section hereinafter expressly specifically admitted or 2369 of the Code was intended to provide a otherwise alleged, denied, and controverted," rule of evidence from which the question

followed by a separate defense to the effect

that the seats were furnished under an agreeof waiver may be determined. The evidence

ment for $3 for each seat, and that the same required to establish such waiver is the had been paid, is not subject to objection under written consent of the parties or their at Code Civ. Proc. $ 500, as not containing any torneys. This requirement is not harsh or

general denial of the allegations of the com

plaint; the proper remedy of plaintiff being by unjust. Parties who wish to submit their

their à motion to have the answer made more specific controversies to arbitration under the provi- | and certain.

Appeal from Supreme Court, Appellate Di- , of bis right to trial or to amend his pleadings. vision, Fourth Department.

We think the better practice is to move to Action by James S. Thompson and others have the pleading more specific and certain. against Henry Wittkop, treasurer of Saint In this case the original folios are given. Andrews Church Society, and others. From | The denial is as to the allegations contained an order of the Appellate Division (90 N. Y. in folios 4 and 5. Folio 4 begins with a paraSupp. 1116, 97 App. Div. 642), reversing the graph of the complaint, and that folio and judgment for defendant, Wittkop appeals. the one which follows it embraces all of the Reversed.

remaining allegations of the complaint down D. E. Brong, for appellant. Ray M. Stan

to the demand for judgment, so that there

is no chance for misunderstanding as to the ley, for respondents.

matter denied in that regard. The allegaHAIGHT, J. The order of reversal as en

tion which follows, to the effect that the contered by the Appellate Division was solely

tract was to pay a definite sum agreed upon upon the ground that the answer did not

for each seat furnished, is also so clear and contain any general or specific denial of the

specific as to leave no room for doubt as to

the issue raised for trial. We therefore are allegations of the complaint in conformity

of the opinion that the pleading in this case with the requirements of section 500 of the Code of Civil Procedure. The cause of ac

as construed by the trial court afforded "sub

stantial justice between the parties." tion set forth in the complaint was for seats

The order of the Appellate Division should furnished a church at the special instance

be reversed and the judgment entered upon and request of the defendant, for which the

the verdict affirmed, with costs in all courts. plaintiff was to be paid what the same were fairly and reasonably worth. The denial

CULLEN, C. J., and GRAY, EDWARD T. contained in the answer is as follows: "And

BARTLETT, VANN, WILLARD BART. for his second and further separate defense this defendant further denies all the alle

LETT, and CHASE, JJ., concur. gations contained in folios 4 and 5 of said complaint, except as hereinafter expressly

Ordered accordingly. specifically admitted, or otherwise alleged, denied, and controverted." Then follows the third allegation of the answer as a separate

(184 N. Y, 46) defense to the effect that the seats were fur O'CONNOR V. VIRGINIA PASSENGER & nished to the church under an agreement to

POWER CO. et al. pay $3 for each seat, and that the same bad (Court of Appeals of New York. Feb. 13, 1906.) been paid for in full.

1. PLEADING-DEMURRER-DEFECT OF PARTIES. While we have examined all of the authori. Where a complaint is for relief against ties cited by counsel in this case bearing up

several persons not parties, and whose presence

is unnecessary to a determination, the prayer on the question, we shall not here allude

for relief may be deemed surplusage and a failto them or attempt to harmonize them fur ure to join them is not cause for demurrer. ther than to state that we have found none 2. CORPORATIONS-ACTION BY STOCKHOLDERwhich we regard as controlling upon this

PLEADING court. Before the Code, pleadings were

A stockholder of a corporation brought an

action against it and two other defendants, to strictly construed against the pleader, but have certain certificates of stock and certain under the Code they "must be liberally con mortgage bonds adjudged void, or that the laststrued with a view to substantial justice be

named defendants should pay the value thereof

to the company. Held, he must allege in his tween the parties.” Code Civ. Proc. § 519.

complaint a cause of action in favor of the No particular form of denial of the allega company of which he is a stockholder, and also tions of the complaint is prescribed. The de facts authorizing his intervention and the main

tenance of the suit in behalf of the corporation. nial, however, should be clear and specific,

3. ACTION-MISJOINDER OF CAUSES. such as to at once apprise the parties and the

A complaint, in an action by a stockholder, court of the matter controverted. The form against the corporation and two other defendused by the defendant in this case is not to ants, stated a cause of action in favor of the be commended. It is about as cumbersome

corporation in one count, but no cause of action

in the second count. The two transactions set as any that could well be devised, and has

forth were independent of each other, and there often been severely criticised by the courts. was no allegation that they were entered into The original folios upon a complaint are al

in pursuance of any common design. Held to most always changed in the record made

constitute separate causes of action within

Code Civ. Proc. $ 484, authorizing a demurrer up for review, and consequently it then be on the ground of misjoinder of causes. comes impossible for the Appellate Court to 4. MOTIONS-ORDER-CONCLUSIVENESS. determine the matter controverted. In many

Where, in an action by a stockholder cases the form of denial used might be so

against a corporation and two other defendants,

| the special term denied a motion by the defend. indefinite and uncertain as to leave a doubt ants for an order requiring plaintiff to separately as to the allegations of the complaint in state and number his two causes of action, on tended to be put at issue; but in such cases

the ground that there was but one cause of

action, such motion did not conclude them from we doubt the propriety of treating the denial

demurring to the complaint for misjoinder of as a nullity, and thereby depriving the party causes.

5. CORPORATIONS-ACTION BY STOCKHOLDER- necessary to a complete determination of PLEADING-DEMAND.

the controversy between the plaintiff and Where the complaint in an action by a stockholder against a corporation, states a good

the defendants Gould, the prayer for relief cause of action in favor of the corporation referred to may be deemed mere surplusage, against the other defendants named, but does and the failure to join them as defendants in not allege a demand that the corporation should

no way can prejudice these defendants. This prosecute the action against such defendants, nor state facts sufficient to relieve plaintiff from

ground of demurrer is bad. making such demand, it fails to state a cause The other grounds of demurrer can be most of action.

readily considered together. The claim of Appeal from Supreme Court, Appellate Di

the plaintiff being derivative, he was revision, Third Department.

quired to allege in his complaint: First, a Action by Thomas O'Connor against the

good cause of action in favor of the VirVirginia Passenger & Power Company and

ginia power company; second, facts which others. From an order of the Appellate Di

authorized his intervention and the instituvision (95 N. Y. Supp. 1149, 107 App. Div.

tion of his suit in behalf of his corporation. 630), affirming an interlocutory judgment,

Kavanaugh v. Commonwealth Trust Co., 181 overruling demurrers to the complaint (92

N. Y. 121, 73 N. E. 562. The grievances of N. Y. Supp. 525), defendants appeal. Re

which the complaint complains are two: versed.

First, a transaction by which a large part of

the capital stock of the power company was The following questions were certified:

acquired by the defendant the Atlantic DeFirst. Is there defect of parties defendant,

velopment Company, under a contract by as alleged in the defendants' demurrers?

which the latter company was to market the Second. Have causes of action been improper

mortgage bonds of the power company at a ly united, as alleged in defendants' demur

specified rate, which stock, on the abrogation rers? Third. Does the complaint state facts

of tbe contract, was assigned to the defendsufficient to constitute a cause of action ?

ants Gould instead of being restored to the Lewis E. Carr, George W. Wickersham, corporation. As to this we think the comHenry W. Anderson, and Charles A. Gardi plaint does state a good cause of action ner, for appellants. John L. Hill, for re in favor of the defendant power company. spondent.

The second transaction is one by which the

defendant Frank Gould acquired certain CULLEN, C. J. This action is brought by bonds of the power company, pledged as cola stockholder of the Virginia Passenger & lateral to secure the payment of the two Power Company to redress certain wrongs notes of that company. We are inclined to alleged to have been inflicted on that company the view that the complaint does not state by the defendants Frank and Helen Gould. a good cause of action in regard to this matand to have certain certificates of shares of ter. It is alleged that Frank Gould acquired the capital stock of said company and certain the notes and collateral by assignment from of its mortgage bonds held by said defendants the payee or holder thereof. We cannot see adjudged void, or in lieu thereof that the what there was illegal in this. It is allegsaid defendants pay the company their value. ed that the corporation was able to pay and The complaint is inartificially drawn and is discharge the notes, but it is not alleged that so voluminous, and most of the questions pre- it did so or even tendered payment. Part of sented on this appeal are of so little general the relief asked is that Frank Gould pay the interest or application, as not to warrant us difference between the market value of the in incumbering the reports with the details of bonds and the sum he paid for them. The the charges. It is sufficient that we state corporation, however, can be entitled to no our conclusions on the points raised by the such relief. Gould stands in the same posidemurrers and give briefly our reasons there tion as his assignor, the original pledgee of for.

the bonds, and he is entitled to hold them unThe several grounds of the demurrers are: til the debt to him is satisfied. But though First, that there is a defect of parties defend the allegations of the complaint do not state ant; second, that separate causes of action are a good cause of action as to this transaction, improperly joined; and, third, that the com still we think it is a separate cause of action plaint does not state facts sufficient to consti- within the Code and rules of pleading. If tute a cause of action. The first ground of de in an indictment two offenses are intended to murrer is based on the demand found in the be set out in a single count, the indictment prayer for relief that the directors of the pow- | is bad for duplicity, even though one of the er company, who committed the unlawful acts offenses is set out defectively. Dawson v. alleged, be held responsible for any loss or People, 25 N. Y. 399. Under section 484 of deficiency occasioned by their conduct. As it is the Code of Civil Procedure separate causes not even stated in the complaint who these of action can be united only when they affect directors were, nor are they made parties to all the defendants. As far as appears on the the action, it seems rather difficult to imag face of the complaint the two matters of ine on what theory such relief was asked. which the plaintiff complains were indepenNevertheless, as their presence is in no way I dent transactions having no connection the one with the other. It is not alleged that I of the corporation at the time of the comthey were committed in pursuance of any mencement of the suit were the same as those common design or agreement to defraud or in who had committed the wrongs for which the jure the corporation. The second cause of | suit is brought, it would relieve the plaintiff action relates solely to Frank Gould. Helen from making any demand on the corporation, Gould is not charged to have in any way par for it may be assumed that such directors ticipated therein. The respondent contends would not prosecute or, at least, not prosecute that the appellants are concluded by an ad in good faith an action based on their own verse decision of a motion made by them to misconduct. But the complaint makes no such compel him to separately state and number allegation, and, at least by inference, charges his two causes of action. The motion was the reverse. It is alleged that the Goulds, denied by the Special Term on the ground in February, 1904, by virtue of the acquisi. that there was but one cause of action. The tion of the stock, elected the board of di. appellants, however, are not concluded by a rectors. But the wrongful acts complained of decision on the question of practice, for "it were committed, not by that board, but by the complaint contains several causes of its predecessor, and there is nothing to show action improperly united contrary to the that the two boards were composed of the Code as is claimed, the vice may be reached same individuals. Nor is the allegation that by a demurrer, and the failure of the plain the new directors were "subservient to the tiff to state them separately and number domination and dictation of said Frank Jay them would not be an answer to it, nor would Gould and Helen Miller Gould" sufficient to a failure to move to correct the complaint prove that they would not prosecute against in this respect defeat the effect of a demur the Goulds a well-founded cause of action. rer.” Goldberg v. Utley, 60 N. Y. 427. It is not necessarily through dishonest or Therefore, the objection that several causes improper motives that persons may be subof action are improperly united is well taken. ject to the domination and dictation of oth

But though, as we have beld, the complaint ers. If the directors were the same as those does state a good cause of action in favor of who committed the wrongs, or if they were the power company against both Frank and acting fraudulently, dishonestly, or collusiveHelen Gould, we think it fails to state facts ly with the Goulds for the purpose of de sufficient to constitute a cause of action in frauding the corporation in the latter's inthe plaintiff's favor. In a derivative action terest, it was very easy to say so, and there of the character of the present one "the com is no reason why the charge should not be plaint should allege that the corporation, on explicitly and unequivocally made. In Brew. being applied to, refused to prosecute, and er v. Boston Theater, 104 Mass. 378, the althat this averment constitutes an essential legation was "that the present board of dielement of the cause of action." Flynn V. | | rectors of said defendant corporation are Brooklyn City R. Co., 158 N. Y. 493, 53 N. E. united in the interest of and under the con520; Greaves v. Gouge, 69 N. Y. 154. The trol of said Tompkins and Thayer." This complaint alleges no such demand or refusal. was held insufficient, the Supreme Court sayThe general rule is subject to this exception, ing: “It does not show that such an applithat where facts are alleged showing that the | cation upon a suitable representation of facts, demand would be unavailing, a demand is would prove unavailing." It is true that un. unnecessary. Morawetz on Corporations, $ der the rules for the construction of plead. 242; Brinckerhoff v. Bostwick, 88 N. Y. 56; | ings prevailing in this state great latitude is Barr v. N. Y., Lake Erie & W. R. Co., 96 permitted and inferences generously indulged N. Y. 444. We are thus brought to the most in to support a pleading. It may well be serious question in the case, whether the al- | doubted whether we have not carried this legations of the complaint are sufficient to re liberality too far, and set a positive premium lieve the plaintiff from first applying to the on bad pleading, oftentimes with the result corporation for redress of his wrongs. In that the worst pleading is the most difficult this long complaint there are but three al to meet or answer. legations relied on for that purpose. It is The orders of the Appellate Division and of alleged that after the abrogation of the con the Special Term should be reversed, and tracts between the Virginia company and the judgment rendered for the defendants on de Atlantic Development Company, and the ac murrer, with costs in all the courts, with quisition by the Goulds of the stock issued to leave to the plaintiff to serve an amended the development company, the Goulds, in Feb complaint within 20 days on the payment of ruary, 1904, caused the election of the board such costs. The first and third questions of directors "subservient to the domination certified should be answered in the negative, and dictation of said defendants.” It is and the second question answered in the also alleged that the "company by its board affirmative. of directors, acting fraudulently and collusively and under the domination of Frank O'BRIEN, HAIGHT, VANN, WERNER Gould,” issued various amounts of mortgage BARTLETT, and HISCOCK, JJ., concur. bonds to the Goulds at an inadequate price. If the complaint alleged that the directors Ordered accordingly.

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