
    James Pollitz, Respondent, v. The Wabash Railroad Company and Others, Appellants, Impleaded with Frederic A. Delano and Others, Defendants.
    First Department,
    February 3, 1911.
    Corporation — suit by stockholder to enjoin exchange of securities —• pleading — complaint stating single cause of action — actions arising out of same transaction— demand for relief — parties —failure to join parties necessary to particular relief.
    Where the fundamental issue involved in a stockholder’s action is the validity of a plan to issue the bonds and stocks of Iris corporation in exchange for debenture bonds, tlie complaint does not state two causes of action merely because the plaintiff asserts that the exchange was illegal, first,' because ultra vires, and, second, because the directors were personally interested therein.
    The fact that there are two grounds of invalidity does not make two causes of action, nor does the fact that an adjudication of invalidity may affect'different defendants differently where all are interested in a single fundamental question. Moreover, assuming such complaint to state two causes of action, they arise out of the same transaction, or transactions connected with the same subject-matter.
    A complaint, otherwise good, is not subject to demurrer merely because the plaintiff asks for more relief than he will be entitled to.
    Although the holders of the portion of the new stocks and bonds already issued in exchange for the debenture bonds have not been made parties to such action, so that the court cannot adjudge their securities to be void, the complaint is not subject to demurrer for defect of parties, for the presence of such holders of the new securities is not indispensable to the granting of a decree adjudging the plan of exchange unlawful, as sucli relief may be granted without adjudg- ' ing that the securities issued pursuant thereto are void. So far as the plan has not been carried out, it may be enjoined and the defendant directors compelled to account for their unlawful acts.
    The depository of the debenture bonds is a proper, though not necessary, party to a suit to declare the exchange illegal.
    But a corporation which acts as a mere registrar by countersigning the certificates of stock that they may be listed on the exchange is not a proper party defendant.
    Appeal by tiie defendants, The Wabash Railroad Company and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 1st day of December, 1910, upon the decision of the court, rendered after a trial at the ¡New York Special Term, overruling the said defendants’ demurrers to the complaint.
    This suit was commenced in 190.7. It was removed into the .Circuit Court of the United States but was finally remanded. While in the Circuit Court demurrers interposed by the appellants herein were overruled. This appeal .is from an interlocutory judgment overruling demurrers "interposed on the ground that there is a misjoinder of causes of action; that there is a defect of parties defendant, and that the complaint fails to state a cause of action as to the defendants the Mercantile Trust Company and the United States Mortgage and 'Trust" .Company.
    
      Rush Taggart of counsel, for the appellants the Wabash Railroad Company and others.
    
      William C. Trull of counsel, for the appellants Evans and others."
    
      J. Aspinwall Hodge of counsel [Stephen M. Yeaman, attorney], for the respondent.
   Miller, J.:

This is a stockholder’s suit attacking filie validity of a plan for the issue of" bonds and stock of the Wabash Railroad Company in exchange for $30,000,000 of debenture bonds, series a and b, the plan being to exchange for each $1,000 par value of debenture .bonds, series a, $795 of new bonds, $580 preferred stock and $580 common stock, and for each $1,000 par value of debenture bonds,' series b, $720 of new bonds, $520 of preferred stock.and $520 of common stock.

It is alleged that the plan was agreed upon by the defendant the Wabash Railroad Company, and by the defendants Evans, Pomroy and Gumming, acting as a committee representing the debenture bondholders, and that it was approved at a meeting called for the purpose by a majority of the stockholders present and by about ninety per cent in amount of the outstanding debenture mortgage bondholders present, but against the protest and objection of the plaintiff. ' It is-charged that said new issue is a fictitious increase of stock and bonds, contrary to the Constitutions and laws of Missouri,' Ohio, Indiana, Michigan and Illinois, under whose laws the defendant railroad company was organized by the consolidation of other railroad corporations ; that the issue of preferred stock was prohibited by the Constitution of the State of Missouri, except upon the consent of all the stockholders, and that several of the defendant directors were owners of the debenture mortgage bonds at the time said plan of exchange was agreed upon as aforesaid. The defendants are the said railroad company, its directors, the said committee of the debenture bondholders, the Bowling Green Trust Company and the defendants Van Biarcom and Porgan, the trustees named in the trust deed to secure the new issue of bonds, the Mercantile Trust Company, the registrar of the capital stock of said railroad company, and the United States Mortgage and Trust Company, the depositary agreed upon of the debenture bonds.

It is alleged that the new securities or interim certificates therefor have been delivered to said depositary, and that exchanges have already been made to the amount of more than ninety per cent of the debenture bonds. The prayer for relief is that the said plan and scheme be adjudged ultra vires the said railroad company, and the said securities, issued pursuant to it, illegal, void and of no effect; that the defendants the Wabash Railroad Company, the United States Mortgage and Trust Company, the Bowling Green Trust Company, Van Biarcom and ¡Porgan be required to re-exchange said securities, and in default thereof that the defendant directors and the defendant the United States Mortgage and Trust Company be required to restore said securities; and in the event of their inability to do so, that they be required to pay into the treasury of the said railroad the par value of the said securities so issued, and in' default of such relief that they be required to account for the par value of said new securities in excess of the actpal market value of the debenture bonds at the time of the exchange;. that the defendant the Mercantile Trust Company be required to return to the said railroad ■ company all the shares of cominqn ánd preferred stock countersigned by it and issued in exchange for debenture bonds, and in default of such relief to pay ’ into the treasury of the said railroad company the par value of the common and preferred stock so countersigned. Injunctive relief is also prayed for.

■ It is asserted that a derivative cause of action, based upon the unlawful act of the directors in acting on behalf of the corporation in a matter in which they were personally interested, is joined with a cause of action in the plaintiff’s individual right, based upon an act ultra vires the corporation, but assented to by a majority of its stockholders, and that a stockholder cannot sue on behalf of the corporation to restrain or undo an ultra vires act assented to by a majority of the stockholders, but.that in such .case the action should be brought against, not in behalf of, the corporation. The distinguished jurist who delivered the opinion in one of the leading cases on the subject (Hawes v. Oakland, 104 U. S. 450) undertook to classify the cases in which a stockholder might maintain a stíit in equity founded on a right of action existing in the corporation itself, and in that classification he included the case “ where the majority of the shareholders themselves are oppressively and illegally pursuing a course in the name.of the corporation, which is in violation of the rights of the other shareholders, and which can only be restrained by the aid of a court of equity.”

The fundamental question involved in this case is the validity of the plan of exchange of the new securities for the debenture bonds. The plaintiff asserts that it w/ts illegal, first, because ultra vires the corporation, and, second, because the directors- were personally interested in it. The fact that there are two grounds of invalidity does not make two causes of action, nor does the fact that an adjudication .of invalidity may affect different defendants differently. All are interested in that fundamental question, and whatever else may be involved is incidental to it. Even if it be possible to spell out more than one cause of action, they arise out of the same transaction, or transactions connected with the same subject of .action, and all involve a single issue, i. e., the validity-of the said plan. (See Bosworth v. Allen, 168 N. Y. 157, 168; Greene v. Knox, 175 id. 432 and cases cited on p. 434.) Very likely the plaintiff has asked for more relief than he will be entitled to in any event, but it is immaterial on the question now being, considered how many forms of relief are asked. (Gotthelf v. Shapiro, 136 App. Div. 1.)

It is claimed that there is a defect of parties defendant, in that the holders of the securities sought -to be adjudged void are necessary parties. Curiously enough, the case was removed to the Federal court on the ground that -it involved a separable controversy between the plaintiff and the railroad corporation, and while it was' pending in the Federal court the demurrer for insufficiency of the Metropolitan Trust Company, one of the largest" holders of the new securities, was sustained.

The court will not adjudge securities void in "the absence of the holders of those securities. (Osterhoudt v. Board of Supervisors, 98 N. Y. 239.) It may be that the trustees named in the trust deed to secure the new bond issue represent the holders of the new bonds. (Corcoran v. Chesapeake & Ohio Canal Co., 94 U. S. 741; Beals v. Illinois, Missouri & Texas R. R. Co., 133 id. 290.) But there is no representative of the holders of the new stock, common and preferred. While it is asserted that the acts coinjfiained of were ultra vires the corporation, it may' turn out that, while unlawful, the new issue was not wholly void. (Louisville, etc., R. Co. v. Louisville Trust Co., 174 U. S. 552.) Certainly, the plaintiff cannot have all the relief asked for without the presence either in person or by representation of all parties to be directly affected. However, the presence of the holders of the new securities is not indispensable to the granting of some of the relief prayed for. The said plan may be adjudged unlawful without adjudging the securities issued pursuant thereto void. So far as the plan has not been carried out, it may be en joined, and the presence of other parties is not necessary to an 'accounting by the defendant directors for their unlawful acts. If the complaint states a cause of action to which absent parties are not indispensable, it is not demurrable merely because relief is asked for which cannot be had without the presence of such parties.

The United States Mortgage and Trust Company, being the depositary of the debenture bonds and the agency for the exchange of securities, is a proper, if not a necessary party, but no " reason appears for making the Mercantile Trust Company a party. The mere fact that, as registrar, it countersigned the certificates of stock in order that the stock might be listed on the Stock Exchange is not sufficient reason to justify bringing it into court as a defendant. It is alleged that it co-operated and confederated with the other defendants in carrying out said illegal plan, but it appears from the complaint that the extent of its co-operation was to countersign the certificates as aforesaid, We think that more than that should be alleged to justify a suit against a mere registrar or transfer agent.

The demurrer of the Mercantile Trust. Company should be sustained, with costs, and with leave to plaintiff to amend complaint on payment of costs in this court and in. the court below; and the demurrers of the other appellants should be overruled, with costs, with leave to withdraw demurrers and to answer on payment .of costs in this court and in the court below.

Ingraham, P. J., McLaughlin, Clarke and Dowling, JJ., concurred.

Demurrer of Mercantile Trust Company sustained, with costs, with leave to. plaintiff to amend on payment of costs; demurrers of other appellants overruled, with costs, with leave to withdraw demurrers and answer on payment of costs. Settle order on notice.  