
    Charles Dusenberry, Jr., and Others, Respondents, v. Sagamore Development Company and Others, Appellants, Impleaded with H. Ward Leonard and Others, Defendants.
    Second Department,
    June 27, 1913.
    Pleading—misjoinder of actions — representative action by stockholders and action to dissolve corporation — demurrer.
    A representative action by stockholders in which the corporation, although a nominal defendant, is really a plaintiff, and a cause of action to dissolve the corporation, which cause of action does not belong to the corporation itself, cannot be joined as they belong to different plaintiffs, and a demurrer to the complaint should be sustained.
    Appeal by the defendants, Sagamore Development Company and others, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 21st day of May, 1913, overruling demurrers to the complaint.
    
      Allan R. Campbell, for the appellants.
    
      John F. Brennan, for the respondents.
   Per Curiam:

Plaintiffs have attempted to state two causes of action which may not be joined. One is a representative action by stockholders of the Sagamore Development Company, in which the corporation, although a nominal defendant, is really a plaintiff in the sense that it has rights against the other defendants which the plaintiff stockholders are entitled to have it enforce. This cause of action belongs to the corporate body, and not to the plaintiff or other stockholders individually, nor to the body of stockholders collectively. (Continental Securities Co. v. Belmont, 206 N. Y. 7, 15.) The other is a cause of action to destroy the corporate life of the said defendant, which cause of action at least does not belong to the corporation itself. In effect, therefore, two causes of action have been united which belong to different plaintiffs: We do not decide whether either cause of action is stated effectively. It is enough that plaintiffs have attempted thus to state them. (Todaro v. Somerville Realty Co., 138 App. Div. 1; Higgins v. Crichton, 11 Daly, 114; affd, without opinion, 98 N. Y. 626.)

The order overruling defendants’ demurrer should be reversed, with ten dollars costs and disbursements, and the demurrers sustained, with leave to plaintiffs within twenty days after entry of the order herein to amend the complaint upon payment of the costs of the demurrer and of this appeal.

Jenks, P. J., Bubr, Thomas, Cabe and Stapleton, JJ., concurred.

Order overruling defendants’ demurrer reversed, with ten dollars costs and disbursements, and demurrers sustained, with leave to plaintiffs within twenty days after entry of the order herein to amend the complaint upon payment of the costs of the demurrer and of this appeal.  