Seaver v. Hodgkin

63 How. Pr. 128

• Court: New York Supreme Court
• Decided: April 15, 1882
• Status: Published

Opinion

Lawrence, J.

The demurrer to the complaint is general, and it is well settled that, where a general demurrer is interposed to a complaint containing two or more counts, if in either count a sufficient cause of action is alleged, the demurrer will be overruled (Hale agt. Omaha Bank, 49 N. Y., 626). How, in this case, three causes of action are stated, but they are not separately numbered. The first is a cause of action arising out of a subscription for ten shares of the capital stock of the Hew York, Westchester and Boston Railway Company, of the par value of $100 per share, and it is alleged that the defendant’s testator paid thereon the sum of $100. It has been held that the actual payment of ten per cent of the par value of the stock subscribed in cash, as required by the statute, is necessary to complete the contract between the subscribers and the corporation, but that the payment need not necessarily be made at the time of the subscription (Excelsior Grain Co. agt. Stayner, 58 How., 273, and cases cited by Beach, J.). In the complaint it is averred that the subscription for the stock was made on or about March 19, 1872, and that the said defendant’s testator paid thereon, on or about May 1, 1872, the sum of $100. This is a distinct and positive averment of the payment of the ten per cent upon that identical subscription, without reference in any way to the other subscriptions referred to in the complaint, and the facts averred make out, as to that particular subscription, in my opinion, a perfect cause of action against the defendant’s testator. How, then can I, the demurrer being general, hold that the complaint is bad (Hale agt. Omaha Bank, 49 N. Y., 677) ? I do not deem it necessary, therefore, to examine the other questions which were discussed upon the argument, and I am of the opinion that, under the authorities above referred to, the plaintiff is entitled to judgment overruling the demurrer, with leave to the defendant to answer over on payment of costs.