Kugelman v. Hirschman

22 Misc. 533, 49 N.Y.S. 1012

• Court: City of New York Municipal Court
• Decided: February 15, 1898
• Status: Published

Opinion

O’Dwyer, J.

The action is brought to recover from the defendants, as directors of the Ladies. Deborah ¡Nursery & Child’s Protectory, for goods sold and delivered, ,and for work, labor and services rendered to said corporation by the plaintiff.

The defendants demurred to the complaint on the ground that there is a defect of parties defendant, and that the complaint does not state facts sufficient to constitute a cause of action. The defect of parties defendant, if defect there be, as stated in the 'demurrer, does not appear on the "face of the complaint, and, therefore, cannot be taken advantage of by demurrer.

The allegation in the complaint to which the demurrer is directed is that marked “ Seventh,” which reads as follows: “ That the defendants, during all the times when the debts herein alleged were contracted, were directors of said Ladies Deborah ¡Nursery & Child’s Protectory.

The defendants demur, stating this ground for their demurrer: “ That it appears upon the face of the complaint that there is a 1 defect of parties defendant in the omission of all the other persons besides the. defendant who were' directors of the Ladies Deborah Nursery & Child’s Protectory during the times mentioned in said complaint.”

It is clear from mere inspection of the complaint that m> such defect appears upon the face thereof.’

The complaint simply states that the defendants “ were directors ” and does not state whether they were or were not all directors during said time.

A demurrer upon such ground is bad, unless it appears affirmatively in the complaint that some person or persons .who should have been made defendants were omitted.

• The court will take judicial notice of the statute (Laws of 1895, chap. 559, § 11) and, under it, the directors are jointly and severally liable and the plaintiff may sue one, any," or all. Strong v. Sproul, 4 Daly, 326; Halstead v. Dodge, 51 Supr. Ct. 169 at 170; Wilson Mfg. Co. v. Schwind, 5 Misc. Rep. 205; 25 N. Y. Supp. 808; State Bank v. Andrews, 18 N. Y. Supp. 167; Quigley v. Walter, 2 Sweeney, 175.

The complaint sets out all the facts necessary to constitute'a cause of action under the statute.

It follows^that the order appealed from should be affirmed, with costs.

McCarthy, J., concurs.

Order affirmed, with costs.