Opinion
May Term, 1896.
Judgment affirmed, with costs, upon the opinion of the Special Term. All concurred.
The opinion of the Special Term was as follows:
The complaint in this case, in my opinion, states but a single cause of action, to wit, one in equity for rescission of a subscription for stock, and for damages in case rescission is decreed. In the prayer for relief an injunction also is asked against all the defendants, restraining them from incurring any liabilities of said corporation during the time plaintiff is a subscriber of record. This claim is based on the facts set forth in the 7th paragraph in the complaint. For this reason the defendants Bayles and Sumner are proper parties to the action. In the prayer it is asked by plaintiff "that the defendants account to plaintiff and pay over the $500 paid in by him on account of such subscription." If plaintiff had only asked that the defendant, the Sanitary Security Company, account, etc., the complaint would not be open to objection, even if defendant Bayles is correct in his contention that Bayles and Sumner are not liable in this action to account to plaintiff. The demurrer is taken by reason of a single claim in the prayer for relief. Conceding that the plaintiff has asked for greater relief than he is entitled to, the defendant Bayles cannot demur on the ground that two causes of action are improperly united. As said before, there is only one cause of action set up in the complaint, and that is equitable. If the plaintiff fails on the trial to make out a cause of action in equity against Bayles and Sumner, he cannot then recover on a cause of action purely legal. His complaint will be dismissed, or, at least, no relief will be given against them. ( Bradley v. Aldrich, 40 N.Y. 504; Wheelock v. Lee, 74 id. 495, 500.) If the relief demanded is incorrect or excessive, it is not good ground for demurrer. ( Emory v. Pease, 20 N.Y. 62; Wetmore v. Porter, 92 id. 76, 80; Pierson v. McCurdy, 61 How. Pr. 134.) The plaintiff contends that the defendants Bayles and Sumner are liable to account in this action, as well as the corporation, for the amount paid on the subscription. In view of my conclusion it is not necessary to decide the question. Demurrer overruled, with costs, with leave to defendant to answer in twenty days, on payment of costs.