
    SUPREME COURT.
    Benjamin F. Weymouth agt. Anthony Dimock.
    In an action against a trustee of a manufacturing corporation to charge him with the liability of a debt due from the company to the plaintiff, on the ground of failure and neglect of the company to file their annual report as required by law, the allegations in the complaint that the plaintiff has recovered judgment against said company for said debt, and issued execution thereon which has been returned unsatisfied, will be stricken out as irrelevant• (See, to the same effectf McHarg agt. Eastman, 35 Mowt) 207.)
    
      New York Special Term, March, 1871.
    The complaint alleged that the defendant was a trustee of the “ New York and Pennsylvania Petroleum Mining and Manufacturing Company,” a corporation organized under the laws of the state of New York.
    That on or about the 7th day of January, 1869, the said corporation was indebted to the plaintiff in the sum of $2,440 33, partly for plaintiff’s services as secretary and partly for moneys paid out by the plaintiff for the ■defendant.
    That being so indebted, and the company neglecting and refusing to pay plaintiff plaintiff commenced an action in this court upon said claim (against said company, and recovered judgment thereon against said company, on the 11th day of March, 1869, for $2,490 49.
    That an execution was issued upon said judgment against said company, but was returned unsatisfied, and that said judgment remains wholly unpaid.
    That said company did not file an annual report, as required by law, within the first twenty days of January in the years 1868, 1869, 1870 or 1871, and still fails and neglects to comply with the requirements of section twelve of the act under which it was organized, by reason of which failure and neglect, the defendant, as one of the trustees of said company, is liable for said debt of said company.
    Defendant moved to strike out as irrelevant, the allegations in the complaint concerning the recovery of judgment and issuing of execution against the company.
    Geo. Putnam Smith, for the motion, cited
    
    
      Witherhead agt. Allen, 3 Keyes, 562; McHarg agt. Eastman, 35 How., 207; Bailey agt. Bancker, 3 Hill, 188; Squires agt. Brown, 22 How., 35.
    A. J. Perry, opposed.
    
   Cardozo, J.

The allegations concerning the judgment and execution against the company are irrelevant. They were so held in McHarg agt. Eastman (35 How., 207), and must be stricken out.  