Bonnell v. . Griswold

68 N.Y. 294, 1877 N.Y. LEXIS 718

• Court: New York Court of Appeals
• Decided: January 30, 1877
• Status: Published

Opinion

Per Curiam.

Assuming, without deciding, that causes of action against trustees of a corporation under the twelfth and fifteenth sections of the manufacturers’ act referred to, may be united in one complaint, and that a false report may be regarded as no report, yet in order to justify such union, each of the causes of action must affect all the parties to the action. (Code, § 167.) For an omission to file any report all the trustees are liable, jointly and severally, to the creditors; for making and filing a false report, only such of the trustees as do the act are liable. The language of the act is “ all -the officers who shall have signed the same, knowing it to be false, shall be jointly and severally liable.”

The contention is whether the complaint should be construed as alleging that all the defendants, including Hoysradt, signed the report alleged to be false. The allegation is, that the defendants and said John A. Griswold on the 13th day of January, 1870, made and filed “ * * * a certificate or report, a copy whereof is hereunto annexed, marked B.” Also, “ that said defendants and John A. Griswold signed said certificate knowing it to be false,” etc. The copy annexed purports to be signed by Griswold and three of the defendants, and not by Hoysradt, Burleigh or Corning. The body of the certificate shows that it was made only by the persons who signed it. It commences “ We,” followed by the names of the persons who signed the instrument. We think that by annexing a copy' of the alleged report to the complaint referring to it, together with the intrinsic evidence furnished by the copy itself, the general allegation of the complaint is qualified so as substantially to aver that the defendants whose names appear upon the copy actually signed the same, and it follows that the defendant Hoysradt did not, by demurring, admit the fact that he signed the report, nor did the other defendants, by demurring, admit the fact. Facts and not conclusions of law are admitted by a demurrer. Averments as to the meaning of a contract set forth in a complaint are not admitted by a demurrer. (21 Wall., 430.)

The question here is, what was the fact alleged ? And we think the allegation is, that the defendants who purport by the copy annexed to have signed did in fact sign. There is an inconsistency in the two allegations. The general allegation that the defendants signed, etc., would include all the defendants, but the additional allegation that the defendants signed, as appears by a copy of the instrument hereto annexed, qualifies and limits the general averment to those appearing to have signed, by the copy.

It is not the case of an allegation of signing, a proper copy of which is given without any signature. Here the copy purports to contain the names of the persons who signed the paper in the body of it, and also the signatures. There is no room for intendment that other signatures were affixed, and hence it cannot be presumed that there was an intention to aver others. The authorities cited by the counsel for the appellants are not inconsistent with these views. In Paige v. People (6 Park., 683) the question was whether the forging of a sealed instrument was averred in the indictment, and it was held that it was under the averment of the forging of a deed which ex vi termini imports a sealed instrument. Wood-buff, J., remarked that the copy set out with the letters L. S. was not a sufficient allegation that it was under seal. In 40 Barbour, 164, it was held that an assignment of all property of the assignor, would convey property not specified in the schedule referred to.

These cases do not meet the case at bar for the reasons before stated, and without further elaboration, we concur with the opinion of Miller, J., in the court below upon this and other points involved.

The judgment must be affirmed, with leave to plaintiffs to amend complaint within twenty days, after service of notice of entry of remittitur, on payment of costs.

All concur; Miller, J., not sitting.

Judgment accordingly.