
    ALFRED E. J. TOVEY, Respondent, v. JOHN L. CULVER, et al., Appellants.
    
      Complaint in action against trustees by reason of not filing report—Insufficiency of averments as to indebtedness of corporation—Averments descriptive of judgment recovered insufficient.
    
    An averment in a complaint, after setting forth the recovery of a judgment by plaintiff against a corporation (of which defendants were trustees) for $120.40, “that the said judgment was obtained for services rendered by the plaintiff to said corporation in publishing their advertisement, for which services the said corporation agreed to pay the sum of $97,50,” is merely descriptive of the judgment, and not an averment that in fact services were rendered to the corporation.
    Under a complaint which contains no other averments as to ar y indebtedness by the corporation to the plaintiff, evidence—in an act on brought against the trustees of the corporation (being a manufacturing company) on the ground of their failure to file an annual report at á time when the plaintiff was a creditor of the corporation—of the rendition of services to the corporation and of the sum agreed to be paid therefor, is inadmissible.
    
    Before Sedgwick, Ck. J., and Ereedmak, J.
    
      Decided December 30, 1886.
    Appeal by defendants from judgment entered on verdict of jury, and from order denying motion for new trial.
    The action was against the defendants as trustees of a manufacturing company, for failing to file an annual report, at a time when the plaintiff was, as he claimed, a creditor of the company on account of services rendered.
    
      E. P. Johnson, attorney, and of counsel for appellants, on the question considered in the opinion, argued:
    I. The complaint was insufficient. It is well settled that in an action of this nature the recovery of a judgment against the corporation is not even prima facie evidence of any indebtedness, and that the judgment roll is inadmissible (Miller v. White, 50 N. Y. 137; Esmond v. Bullard, 16 Hun, 65; McHarg v. Eastman, 7 Robt. 137). The allegation in the amended complaint that on a certain day the plaintiff recovered a judgment against the corporation, which judgment was obtained for services, etc., amounted to nothing more than a brief statement of the substance of the judgment roll. There is no allegation of any fact. It nowhere states that the plaintiff, at the request of the corporation, rendered any services, but merely that plaintiff recovered a judgment which purported to be for services. This might well be true and yet no services have ever been rendered. Assuming this point to be well taken, it was error to admit evidence of the services, and the complaint should have been dismissed (Tooker v. Arnoux, 76 N. Y. 397).
    
      Edward Grosse, attorney, and Henry Wehle, of counsel for respondents, on tie question considered in the opinion :
    I. Assuming that the exceptions were sufficient . to bring up for review the construction of the complaint, it is clear that the complaint sets forth a good cause of action, and was sufficient to admit all the proof offered. The amended complaint contains the unnecessary averment of the recovery of a judgment, but it does state the rendition of services by plaintiff to the company. The surplusage being disregarded, the complaint reads “ that services were rendered by the plaintiff to the corporation in publishing their advertisements, for which services the corporation agreed to pay $97.50.” The complaint is, therefore, sufficient even without invoicing the liberality of construction which justice, fairness, and common sense has introduced in modern practice. If it were a matter for argument, a reference to the Code would dispose of the same (Code, § 519; Allen v. Tatterson, 7 N. Y. 476 ; Alcott v. Carroll, 39 Ib. 436; Quintard v. Newton, 5 Rob. 72).
    
      
       Such a complaint does not contain facts sufficient to constitute a cause of action in such an action.
    
   By the Court.—Sedgwick, Ch. J.

On the trial the plaintiff offered testimony as to the services. The counsel for the defendants objected that the complaint did not aver that the plaintiff had rendered service. The objection was overruled.

The averments of the complaint on this subject were that the plaintiff had obtained judgment in a district court for $120.40 damages and costs; “that the said judgment was obtained for services rendered by. the plaintiff to said corporation in publishing their advertisement, &c., for which services the said corporation agreed to pay the sum of $97.50.”

I am of opinion that the averments as to service are descriptive of the judgment that was entered, and not an assertion that in fact the services were rendered. As they are parts of a description, it cannot be said that the complaint avers argumentatively that services were rendered, for when properly used as description, the defendants could not reason that they were meant to be used for another purpose.

Indeed all the allegations as to the judgment were irrelevant to the plaintiff’s supposed cause of action. The defendants were not held to meet them, and as they could not be divided, they were not held to meet any part of them.

The judgment and order appealed from are reversed, and new trial ordered with costs to abide the event.

Freedman, J., concurred.  