Opinion
March 6, 1914.
Jacob Ansbacher of counsel [ Ferris, Dannenberg Ansbacher, attorneys], for the appellant.
Henry G. Gennert, for the respondent.
Defendant demurs to the complaint on the ground that it does not state facts sufficient to constitute a cause of action.
The complaint alleges that defendant is a domestic corporation and that plaintiff is the administrator of Shakir Moghabghab, who died October 21, 1912, intestate; that prior to January 18, 1911, plaintiff's deceased was the owner and holder of a certificate for twenty shares of stock in the Levant Trading Company, Inc.; that on or about the 15th day of January, 1911, a contract was entered into between plaintiff's deceased and others on the one part and the defendant Sherman Sons Company on the other part, a copy of which was annexed, whereby the defendant agreed to buy the stock of the plaintiff's deceased in the Levant Trading Company, Inc., for an amount equal to the book valuation of said shares, as shown by the books of said Levant Trading Company, when closed, as of the date of January 15, 1911, and from the inventory and balance sheet to be prepared; that pursuant to the terms of said contract, the defendant caused to be prepared an inventory and balance sheet, which is annexed. The said balance sheet showed the book value at that time of the shares of stock in said company held by the plaintiff's deceased.
That theretofore, and on or about the 3d day of April, 1911, at Beyrout, Syria, plaintiff's deceased duly delivered to one George M. Chaffee his said certificate of stock for twenty shares in the Levant Trading Company, duly indorsed, and at the same time and place the said Chaffee duly delivered to plaintiff's deceased a receipt therefor, a copy of which is annexed. At the time of delivery of the said certificate of stock the said Chaffee was a director and officer of the defendant. The said Chaffee received the said certificate for and on behalf of the defendant and as a director thereof. Thereafter and prior to the commencement of this action the said Chaffee duly delivered said certificate of stock to the defendant. Prior to the commencement of this action the other persons mentioned in said contract delivered their stock to the defendant and received payment therefor. Prior to the commencement of this action the defendant became the holder of all of the stock of the Levant Trading Company. The plaintiff's deceased duly performed all conditions on his part. By reason of the premises there became due and owing and payable by the defendant to the plaintiff's deceased the sum of $2,137.60, payment of which has been demanded, but of which no part has been paid.
The demurrer was sustained by the learned Special Term upon the ground that the plaintiff, while pleading performance generally pursuant to section 533 of the Code of Civil Procedure, failed to rely on the provisions of that section, and in addition thereto alleged the details of performance and was, therefore, bound to show details, and that the allegations failed to show compliance with the terms of the agreement annexed to the complaint and made part of it. I am unable to agree with that conclusion. Not only does the complaint allege in the language of the statute that the plaintiff's deceased "duly performed all conditions on his part," but the facts set forth to show performance support said allegation instead of destroying it. In addition, it seems to me that independent of that allegation the facts set forth allege a complete cause of action. The complaint alleges that plaintiff's deceased delivered his shares duly indorsed to a director and an officer of the company, who received said certificate of stock for and on behalf of the company, and the receipt is signed "G.M. Chaffee, Director of Sherman Sons Co."
It also avers that Chaffee duly delivered the certificate of stock to the defendant, and that the other persons mentioned in the contract delivered their stock to the defendant and received payment therefor, and that the defendant became the holder of all the stock hereinbefore mentioned. Corr v. Sun Printing Publishing Assn. ( 177 N.Y. 131), relied on by respondent, was an action for libel, where the complaint alleged, under section 535 of the Code of Civil Procedure, that the libel was published of and concerning the plaintiff, but the court found from the facts set forth it was not so and sustained a demurrer. In other words, that the detailed facts stated completely refuted the conclusion of fact alleged. (See Lange v. Benedict, 73 N.Y. 12; People ex rel. Hart v. Goodrich, 92 App. Div. 445; Burdick v. Chesebrough, 94 id. 532.) In each of these cases facts were set up inconsistent with and destructive of the general allegation. No such situation is here presented.
The complaint sets up a complete cause of action independent of the general allegation, and the facts so set up are not inconsistent therewith.
The order appealed from should be reversed, with ten dollars costs and disbursements, and the demurrer overruled, with ten dollars costs, and with leave to the respondent on payment thereof to withdraw the demurrer and answer over.
INGRAHAM, P.J., McLAUGHLIN, SCOTT and HOTCHKISS, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and demurrer overruled, with ten dollars costs, with leave to the defendant to withdraw demurrer and answer on payment of costs.