
    Ulysses B. Brewster and William J. Brewster, as Coadministrators, etc., of Frederick Gillette Brewster, Deceased, Suing on Behalf of the Estate of Said Frederick Gillette Brewster, Deceased, and Other Stockholders, Respondents, v. The F. G. Brewster Company and Others, Appellants.
    First Department,
    May 6, 1910.
    Pleading —- supplemental complaint — wliat questions may be considered on motion — representative action — irrelevant matters.
    The .merits of a cause will not be considered on an application for leave to serve a supplemental pleading, nor will the motion be denied either on the theory that it will be of no avail or that the original pleadiftg does not state a cause of action unless that fact has been adjudicated.
    If the proposed pleading alleges facts-relevant to and consistent with the cause set forth in the original pleading, leave to ser.ve it should not be denied on the ground that it contains other allegations not germane thereto. Such allegations may be subsequently stricken out on motion.
    Where a complaint in a representative action by stockholders on behalf of themselves and all others similarly situated seeks to annul an issue of stock on the ground that it was fraudulently made contrary to the interests of a corporation and in pursuance of a conspiracy by certain stockholders to obtain control, permission should be granted to serve a supplemental complaint, which sets forth other acts done pursuant to the conspiracy subsequent to the commencement of the action and prior acts of which the plaintiffs did not then have knowledge. This, although the proposed pleading also contained allegations which would only be appropriate in an individual action brought in.the plaintiff’s own right.
    Appeal by the defendants, The F. G-. Brewster Company and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 9th day of March, 1910, permitting and directing 'the plaintiffs to make and serve a supplemental complaint herein;
    
      Robert R. Reed [A. Chalmers Charles with him on the brief], for the appellants.
    
      John B. Doyle [.Dudley Davis with him on the brief], for the respondents.
   Laughliu, J.:

The only objections, to the. order which we deem of sufficient importance to require discussion in an opinion are that it allows the plaintiff to plead a new cause of action of a nature different from that originally pleaded, which has arisen during the pendency of the action, and that the facts stated are insufficient to warrant the relief demanded. The rule is now well settled that the merits of the case-will not be considered on an application to serve a supplemental pleading, and that unless the insufficiency of the original pleading has been authoritatively adjudicated, the motion for leave to serve the supplemental pleading will neither be denied on the theory that a cause of action is not stated in the original pleading, nor on - the theory that it will be of no avail, for those questions should be left to. be decided On demurrer, or on motion for judgment on the pleadings, or on the trial, whereby the party desiring to interpose the pleading will be afforded a clear legal right to review any adverse decision or ruling. . (Farmers’ Loam, & Trust Co. v. United Lines Tel. Co., 47 Hun, 315; Prouty v. Lake Shore & M. S. R. R. Co., 85 N. Y. 272; Horowitz v. Goodman, 112 App. Div. 13; Bell Telephone Co., v. Home Telephone Co., 52 id. 13; N. Y. C. & H. R. R. R. Co. v. Haffen, 23 id. 377.) If the proposed pleading contains allegations of fact relevant to and' consistent with the case presented by the original pleading, leave to serve it should not be denied on the ground that it contains other allegations not germane thereto and a motion may be made thereafter notwithstanding the granting of such leave to strike out the irrelevant allegations.

The original complaint contains certain allegations and a demand in the prayer for relief which would only be appropriate to an action by the plaintiffs in their own right as stockholders for an accounting for a violation of contract rights, but considering the title of the action and all of the allegations contained in the complaint and the demand for relief, it is fairly to be inferred, as claimed by counsel for the plaintiffs and as was claimed on a former appeal to this court from an interlocutory judgment overruling a demurrer to the complaint (129 App. Div. 903), that it is a representative action brought by the administrators of Frederick Gillette Brewster, deceased, who as such are stockholders of the defendant corporation, for the cancellation of two issues of the capital stock on the ground that the issuance thereof was illegal and in consummation of a fraudulent scheme tú injure the corporation and to enjoin the defendants from voting thereon. The illegality is predicated on the charge that the stock was issued pursuant to a scheme and conspiracy entered into by the individual defendants with the fraudulent design of obtaining the control and management of the company, and of appropriating to themselves the profits of the business, in violation of the rights of the plaintiffs as such stockholders and in violation of- an agreement between the decedent and the defendant Joseph Hartog who together originally .formed the company to take over a copartnership business conducted by them, which agreement contemplated the equal representation of each of said parties in the management of the corporation, and to that end provided for an equal division between them of the stock to be issued from time to time, and which agreement it is alleged and claimed became binding on the company and on the other stockholders who, it is alleged, became such in the interest of one or the other of said parties. The prayer for relief contained in the original complaint, in addition to demanding the cancellation of the stock, demands the annulment of all resolutions of the board of directors adopted since the death of Frederick Gillette Brewster affecting the issuance or transfer of stock, or the election or qualification of directors of the company. The complaint also contains the usual prayer for other and further relief, and demands the appointment of a receiver of the property of the company in the event that the individual defendants refuse to consent to an equal representation by the plaintiffs with them on the board of directors, and in the event that there does not exist a board of directors lawfully constituted. We must, of course, decide what cause of action was attempted to be set forth in the original complaint, in order to decide whether the allegations contained in the supplemental complaint are germane thereto, but as already observed, we aré not now concerned with the sufficiency of either pleading. (See, also, People v. Equitable Life Assurance Society, 124 App. Div. 714, 727, and cases cited.) The 'original complaint proceeds upon the theory that the ownership of the stock, which it is sought to have canceled, is -vested in the company subject to said agreement. In so far as the complaint rests upon a mere violation of the agreement between the original parties with respect to equal representation in the corporation it is doubtful at least whether any relief could be awarded (see Bond v. Atlantic Terra Cotta Co., 137 App. Div. 671; Waters v. Waters & Co., 130 id. 678; Jackson v. Hooper,--N. J. Eq.-, N. Y. L. J., March 8,1910), but it is manifest that there may be .a fraudulent issue of stock, not in the interests of the corporation, but in the interest of the individual directors and with a view to enabling them to obtain and maintain control of the corporation and to appropriate to themselves to the exclusion of other stockholders all profits of the business, and if so an action may be maintained by a stockholder in the right of the corporation to enjoin the further consummation of the conspiracy and for an accounting to the corporation, and" such it is claimed is this' action. As tending to sustain this theory, we find the title of the action indicating that it was brought in the interest, not only' of the plaintiffs, but of other stockholders, and in the 26th paragraph of the complaint we find the usual allegations, appropriate to such an action dispensing with a demand upon the directors to bring it on the ground that such'demand would be futile. For these reasons, therefore, we are of opinion that the plaintiffs’ classification of the action should be accepted, and that it should be regarded as a representative action.

There are likewise allegations in the supplemental complaint and in the demand for relief which would only be appropriate to • an action by the plaintiffs in their own right as stockholders, and not in the right of the company; but it also contains allegations to the "effect that since the commencement of the action the certificates of stock which are sought herein to be canceled have been illegally voted with a view to securing the management and control of the business in the individual defendants in consummation of said conspiracy, and that they have thereby -exercised, and are exercising such control; that the individual defendants, as officers and directors of the corporation, have fraudulently misapplied, diverted and wasted funds of the corporation, and have appropriated to their own use assets of the corporation; that the defendants Joseph and Harriet Hartog have appropriated to themselves and enjoyed “for their private dwelling apartment” without paying the company therefor, a large part of the building leased by the company; that the names of dismissed employees have been continued on the payrolls of the company, and the salaries or wages of such dismissed employees have been withdrawn from the treasury of the company and paid to persons unknown to- the plaintiffs, without the rendition of any services therefor; that there are carried on the books of the company accounts of loans or advances purporting to have been made by the defendants Joseph and Harriet Hartog to the company, which loans if made were “ wasteful, unnecessary and improper,” and that the defendants have failed to make, publish and report statements of the affairs of the company as required by law. The additional prayers for relief contained in the supplemental complaint are that the damages sustained by the defendant company and by the estate represented by the plaintiffs be ascertained and determined, and that the individual defendants be compelled to account as directors; that a receiver be appointed, and that the individual defendants be compelled to pay over to' him for the benefit of the company, its creditors and stockholders, “ any and all moneys and the value of any and all property,”' which they have taken for themselves; or transí erred to others, or wasted by a violation of their duties as directors..

We are of opinion that these allegations are germane to the original complaint. In so far as they relate to matters which have occurred since the commencement of the action they strictly supplement the complaint, for it is charged that all of the acts and things were done pursuant to and in consummation of said conspiracy; and in so far as they relate to matters which occurred before the commencement of the action it was shown that the information was acquired by the plaintiffs since that time. The original action, as we construe it, is in the right of, the corporation for equitable relief to which it is claimed the corporation is entitled on account of misconduct on the part of its officers and directors, and the facts set forth in the supplemental complaint, which relate to the rights of the corporation and are, therefore, relevant, are consistent with the cause of action attempted to be pleaded originally and merely show cause, based on other acts of misconduct of the same ■ officials, for extending the relief which was demanded in the original complaint.. Of course if the cause of action set forth in the original complaint were one in the right of the plaintiffs, a supplemental complaint based on a, cause of action vested in the corporation could not be allowed.

It follows, therefore, that the order was properly granted, and it ’should be affirmed, with ten dollars costs and disbursements.

. Ingraham, P. J., Clarke, Soott and Hiller, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  