
    Joseph Ward, Jr., and Thomas Hinds, Appellants, v. William E. R. Smith and Others, Respondents, Impleaded with Charles E. Fennessey and Others.
    
      Defect of parties and misjoinder of causes of action — when they appear on the face of the complaint the objection must be taken by demurrer — on the trial of issues of law raised by an answer leave to demur to the complaint should not be granted — action by stockholder to compel the officers of a corporation to account—when the complaint states a single cause of action—a want of equity may be pleaded as a defense to a demand for equitable relief.
    
    An objection to a defect of parties defendant, which appears upon the face of a complaint, can be taken only by demurrer.
    If not so taken, it is improper for the court, upon the trial of the issues of law raised by a demurrer to separate defenses contained in the defendants’ answer, to grant the defendants leave to demur to the complaint on the ground of such defect of parties.
    The objection that causes of action have been improperly united in the complaint must, where such objection appears upon the face of the complaint, be taken by demurrer or it will be deemed to have been waived.
    When the complaint in an action sets up a single cause of action to compel the defendants to account for certain violations of their duties as officers of a corporation, of which the plaintiffs are stockholders, and is not demurrable on the ground that two or more causes of action are improperly united therein, considered.
    In such a case the defendants have a right to allege as a defense any fact which would show a want of equity in the claim of the- plaintiffs to require the 'defendants to account, e. g., that the plaintiffs received their stock as a gift from a person who could not himself maintain the action, or that the plaintiffs had not exhausted or attempted to pursue their remedy at law.
    Appeal by the plaintiffs, Joseph Ward, Jr., and another, from so much of an.interlocutory judgment of the Supreme Court in favor of the defendant William E. R. Smith and certain other defendants, entered in the office of the clerk of the county of Hew York on the 8th day of March, 1904, upon the decision of the court rendered after a trial at the Hew York Special Term, as grants leave to the said defendants William E. R. Smith and others to demur to the complaint on the ground of defect' of parties defendant, and from so much thereof as overrules the demiirrers of the plaintiffs to the separate answers of the said defendants.
    
      Edward W. S. Johnston, for the appellants.
    
      Clarence J. Shearn, for the respondents.
   Ingraham, J.:

The action was brought by the plaintiffs as holders of stock and bonds of the defendant, The Fidelity Gas Company of Hoosick Falls, N. Y., to compel the. defendants Smith, Case and Fennessey to account for their official conduct as its officers and directors and for certain of its stock and securities which it is alleged they obtained from the corporation without consideration therefor and for other relief. The defendants Smith and Case answered, admitting some of the allegations of the complaint and denying others, and set out four separate defenses to which the plaintiffs demurred. The court sustained the demurrer' to the second defense, which alleged that there was a defect of parties defendant, with the following proviso : “ With leave to the defendants to demur to the complaint on the ground of such defect of parties defendant within twenty days after entry and service of the interlocutory judgment to be entered hereon,” and overruled the demurrer to the other defenses. And from the interlocutory judgment entered thereon the defendants appeal.

We agree with the court below that the second defense was bad and the demurrer was properly sustained. It was improper, however, upon the trial of an issue of law raised by a demurrer to a separate defense to allow the defendant to demur to the complaint.' The objection to the complaint taken by this defense was one that the defendants could raise by demurrer under subdivision 6 of section 488 of the Code of Civil Procedure. Whether or not there was a defect of parties appeared upon the face of the' complaint, and, therefore, the objection could not be taken by answer, as such an objection can be so taken only where this ground of demurrer does not appear on the face of the complaint (Code Civ. Proc. § 498), and the objection appearing upon the face of the complaint and not having been taken by demurrer it was. waived.. (Code Civ. Proc. § 499.) When the defendants interposed their answer this objection to the complaint was waived and could hot be revived so long as the answer remained as a pleading in the action. A demurrer which was based only upon an objection that has been Waived would present no question for review. It 'was clearly the intention by these provisions of the Code of Civil Procedure to compel a defendant who wished to insist upon an objection of this kind to have it disposed of before answering the complaint upon the merits. So that objections which were to a., certain extent preliminary to the disposition of the main issue should not defeat the action unless they were taken as a preliminary step before the issues of fact were joined; and it would be quite illogical to allow a defendant to interpose a demurrer which raised a preliminary question as to parties to proceed at the samé time with an answer to the complaint upon the mérits. We do not think that this objection to the complaint is good, as we think that, all of the necessary parties to the action were before the court;. but the defendants having failed to take the objection by demurrer,, whatever objection there was to it was waived. This provision allowing a defendant to demur, to the complaint should, therefore,, be stricken from the interlocutory judgment.

We also think that the court should have sustained the demurrer to the third separate defense which alleges that actions have been improperly united in the complaint. This ground of demurrer is-allowed by subdivision 7 of séction 488 of the Code of Civil Procedure ; and where the objection appears upon the face of the complaint it.must be taken by demurrer, or the objection is waived, and this objection was, therefore, waived by a failure of the defendants, to take it by demurrer. But so far as. I can understand this complaint, it sets up but one cause of action, and that is to compel the defendants to account for certain alleged violations of their duty as officers of a corporation of which the plaintiffs are stockholders. The complaint is voluminous, alleging many facts which would seem to be immaterial, and without any definite idea of the nature of the cause of action sought to be enforced. The facts would not sustain an action by the plaintiffs as creditors of the corporation to obtain payment of their debts, as it is nowhere alleged that they have exhausted their remedy at law against the corporation; and all allegations in relation to the plaintiffs being creditors of the corporation would seem to be immaterial. The only cause of action alleged, which I can see, is one to require these defendants as officers of the corporation to account to the corporation for their acts as its officers and directors; and the plaintiffs’ standing to maintain the action is based upon the fact that they are stockholders of the corporation, and as such they are entitled to maintain an action to enforce the obligations of the officers to the corporation where the corporation either refuses to bring the action after a request by the plaintiffs, or where it is in control of the officers who are sought to be held liable, so that a request would be useless. The complaint alleges no fiduciary relation existing between the plaintiffs individually and these defendants, and no facts are alleged which would make the defendants liable to the plaintiffs for any fraud. A study of this complaint discloses no cause of action that I can see, except one to enforce this liability to the corporation, and although there are many irrelevant allegations of fact which have nothing to do with such a cause of action, I cannot see that they, taken together, would give to these plaintiffs individually a right to any relief, except so far as they are entitled to enforce the defendants’ obligations to the corporation.

As to the other defenses, I think the demurrer was properly overruled. The complaint asking for equitable relief, the defendants had a right to allege as a defense any facts which would tend to show a want of equity in the claim of the plaintiffs to require the defendants to account. The first separate defense alleges that the plaintiffs are not bona fide stockholders of the corporation; that the plaintiffs received the shares of stock held by them as a gift from the defendant Case without any consideration therefor, and that Case had full knowledge of, and consented to, the issue of stock and bonds of the said company, and for that reason the plaintiffs' have no legal capacity to prosecute this action. The defendants were entitled to have these facts considered by the court in determining whether or not the plaintiffs as stockholders had the right to enforce an equitable action which the person who had transferred the stock to him, without consideration, had no right to enforce. (See Parsons v. Hayes, 50 N. Y. Super. Ct. 29.) It is not necessary that we should determine that these facts would be a bar to any relief being .granted to the plaintiffs, but it is sufficient that the defendants are •entitled to present these facts to the court where it has to determine what, if any, relief should be granted to the plaintiffs.

We also think that the defendants were entitled to allege the facts set out as a further separate defense for the same reason. Certain facts are there alleged which defendants claim are sufficient to jus-. tify the court in refusing to grant the plaintiffs any equitable relief. One of these allegations is, that the plaintiffs have not exhausted or even attempted to pursue their adequate remedies at law for the grievances and wrongs in their complaint alleged; ” and this would be an answer to any right of the plaintiffs to compel the defendants to account to the plaintiffs individually for money or property of ’ the corporation which the defendants have received and which the plaintiffs claim should not have been applied to the payment of the •coupons on the bonds held by them. While the facts alleged in '•these separate defenses may not be a sufficient defense to any relief being granted to the plaintiffs, they are facts that the defendants had a right to plead as an answer to the demand for equitable relief, and, therefore, were not demurrable.

It follows that the interlocutory judgment should be modified by striking out the clause allowing the defendants to demur to the complaint, and by sustaining the demurrer to the third separate defence, •and overruling the demurrer to the’first and fourth separate defenses, and as thus modified the interlocutory judgment should be affirmed, without costs. '

Patterson, O’Brien, McLaughlin and Laughlin, JJ., concurred.

Judgment modified as directed in opinion, and as modified affirmed, without costs.  