
    Herbert H. Gibbs, Appellant, v. Knickerbocker Savings and Loan Company, Respondent.
    Second Department,
    November 22, 1912.
    Pleading — action by attorney against defunct bank for services — defense by Superintendent of Banks — demurrer overruled — pleading in language of statute — pleading facts as appearing in report of Superintendent — grounds of demurrer.
    In an action by an attorney against a savings and loan company to recover his annual fee and disbursements as attorney and counsel, and also to recover a balance due for his salary as secretary, the Superintendent of Banks, having taken possession of the defendant for the purpose of winding up its affairs, joined issue for it by a plea of general denial and of separate defenses. The latter were challenged as hypothetical, conditional and argumentative; The defense thus attacked is that certain alleged oficial reports of the defendant, made and filed pursuant to statutes specified, show on their face “that the payment or allowance by defendant of the alleged claims of plaintiff * * * would have been illegal and was and is prohibited by the provisions ” of certain statutes specified, stating the reasons why such payments would have been illegal. Held, that plaintiff’s demurrer to the separate defenses was properly overruled.
    The defense is not objectionable in that the specification of the illegality of the claim is pleaded in the language of the statute, nor in that facts are pleaded as appearing in the reports of the defendant.
    The fact -that other matters set forth in the defenses are not defensive affords no ground for demurrer.
    Appeal by the plaintiff, Herbert H. Gibbs, from part of an interlocutory judgment of the Supreme Court in part in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 10th day of June, 1912, upon the decision of the court rendered after a trial at the Westchester Special Term.
    
      Herbert H. Gibbs [Arthur J. Carleton with him on the brief], appellant, in person.
    
      Timothy A. McCarthy [George J. Gillespie with him on the brief], for the respondent.
   Jenks, P. J.:

The appeal is from an interlocutory judgment of the Special Term that overrules the plaintiff’s demurrer to two of the separate defenses. The plaintiff complains to recover his annual fee (together with certain disbursements) as attorney and counsel to the defendant under retainer by the board of directors, whose action was ratified and approved by the shareholders, and also to recover a balance due for his salary as secretary of the defendant, which was determined in like manner as was his retainer. The property and business were taken by the Superintendent of Banks for the purpose of winding up the corporation, and are now in his hands. He joined issue for the defendant by plea of general denial as well as of separate defenses. The defenses are challenged as on their face hypothetical, conditional and argumentative, in that They contain no allegations of fact from which it can be made to appear that the contracts sued on, i. e., the directors’ resolutions, subsequently ratified by the stockholders and fully executed by' plaintiff, were illegal or void, or malum in se, or contrary to public policy.” In the further words of the learned counsel for the appellant: They do not even allege that payment' now by the superintendent of banks will be illegal. Although the word ‘ if ’ is not actually used, it might as well have been used, for these defenses aré, on their face, hypothetical, conditional and argumentative. The defense is, in substance, merely this: payment was not made, but, if payment had been made, it would have been an illegal payment.” The defense thus attacked is that certain alleged official reports of the defendant, made and filed pursuant to statutes specified, show on their face “ that the payment or allowance by defendant of the. alleged claims of plaintiff * * * would have been illegal and was and is prohibited by the provisions ” of certain statutes specified, “in that said payments or allowances in each or any or all of said years would have made the amounts paid or allowed by defendant as salaries, commissions, fees or other compensation to its officers, directors, auditors, attorneys, agents, clerks and all other employees and for rent, advertising, commissions and all other operating expenses exceed a sum equal to two and one-half per centum of the total amount of dues actually received and credited to its members and the dividends duly apportioned thereon, including dues and dividends credited to the holders of matured stock, in each of said years respectively,” and that the said annual reports show all the payments or liabilities incurred for salaries and other compensation, and all operating expenses and all dues received and dividends apportioned, and the illegality of said claim of plaintiff was well known and the reports were filed with his knowledge and consent, and that plaintiff had frequently stated to the Superintendent of Banks that the said reports were full, complete and correct.

The pleading is not only that the payment or allowance by the defendant would have been illegal, but that such payment “was and is prohibited,” which I think is not argumentative, conditional or hypothetical. The pleading is not objectionable in that the specification of the illegality of the claim is pleaded in the language of the statute. (Cole v. Jessup, 10 N. Y. 96; Abb. Brief P1. 285.) Nor is it objectionable in that the facts of the offending are pleaded as appearing in the reports óf the defendant. (Boyer v. Boyer, 113 U. S. at 701.) If other matters which are set forth in these defenses are not defensive, this affords no ground for demurrer. (Uggla v. Brokaw, 77 App. Div. 310, and cases cited.) It is not necessary that we should now discuss the legal merits of the defenses, inasmuch as we have to deal with a question of pleading alone.

The judgment should be affirmed, with costs.

Hirsohberg, Burr, Thomas and Carr, JJ., concurred.

Interlocutory judgment affirmed, with costs.  