Rowell v. Janvrin

23 N.Y.S. 481, 69 Hun 305, 76 N.Y. Sup. Ct. 305, 53 N.Y. St. Rep. 312

• Court: New York Supreme Court
• Decided: May 12, 1893
• Status: Published

Opinion

PER CURIAM.

We are of the opinion that the court erred in permitting the amendment of the complaint by the order appealed from. The cause of action sought to be set up by the amended complaint was entirely independent of, and had no relation to, that which had been alleged in the original complaint. In the original complaint a liability of a stockholder was sought to be enforced because of the failure to file a certificate that the whole of the capital stock had been paid in, under sections 10 and 11 of the manufacturers’ act. By the amended complaint a liability upon the part of the stockholder was attempted to be set up, arising from the provisions of section 14 of the same act, in reference to the purchase of property, and the issuing of stock therefor. These were distinct, independent grounds of a recovery, the only common feature being that in each the defendant was sought to be charged as a stockholder. We think the court should not have ingrafted upon this action, in which the plaintiffs seemingly confess that they cannot succeed, an independent cause of action. The order appealed from should therefore be reversed, with $10 costs, and disbursements of this appeal, and the motion denied, with $10 costs.