Randall v. Havemeyer 17 Jones & S. 520, 49 N.Y. Super. Ct. 520

GEORGE RANDALL, Respondent, v. JAMES HAVEMEYER, Appellant.

Corporations.—Pleading—action to enforce stockholder's statutory liability in case-of non-payment capital stock—allegation that capital stock had been reducedwhen material to stockholder—appointment of receiver of corporation, allegation as to, not material.

Before Sedgwick, Ch. J., Truax and Ingraham, JJ.

Decided June 2, 1883.

Appeal by defendant from order, striking out part of answer, as irrelevant, and requiring another part to be-made more definite and certain.

The court at General Term, said : “So far as the order-directed the answer to be made more definite and certain, it did not affect any substantial right of the def endant, and it should be affirmed.”

The action was brought by the plaintiff as a creditor of a mining company, after judgment obtained and execution returned, to recover from the defendant, as a stockholder of the company, the amount due to plaintiff on the ground that the capital of the company had not wholly been paid in.. The complaint alleged that the defendant was the owner of stock to an amount specified.

The answer alleged that befóre the judgment referred to Lwas obtained, the capital stock of the company was dimin*521ishecL to one-tenth-of the original amount. The order below struck out as irrelevant, the words that constituted this allegation.

The court at General Term, said : ‘ ‘ This was erroneous. The answer had controverted the averment of the complaint, as to the amount of stock owned by the defendant, and had alleged that the amount was one hundred shares, and no more. The defendant had a right to take the position that the number of shares which might be the basis of his responsibility was to be determined in part, by the reduction of the original amount of the capital. This position was not irrelevant to the issue referred to, and even if not well taken as a defense, or part of a defense, should not have been stricken out, so that the defendant could not use it in the trial of the issues. The order should be reversed so far as it struck out the matter that has been examined.”

The order also struck out as irrelevant, allegations that a permanent receiver of the property of the company had been appointed, who had entered upon his trust and had taken possession of all the property of the company, and had never been discharged.

The court at General Term, said : “ This is not pleaded as a separate defense and is not relevant to any defense pleaded, or to any that can be suggested as possible. It would not be received as evidence upon any issue that might be made upon the trial. The order was correct in this respect.”

T. H. Barowsky and Lemuel Skidmore, for appellant.

Samuel L. Harris, for respondent.