North American Iron & Steel Co. v. Lefkowitz ( 1958 )

In an action to impress a trust on corporate stock claimed to have been wrongfully acquired, the appeal is from an order denying appellant’s motion to dismiss the complaint for insufficiency (Rules Civ. Prac., rule 106, subd. 4), or, in the alternative, to compel respondents to serve an amended complaint separately stating and numbering each cause of action (Rules Civ. Prac., rule 90). Order modified by striking from the ordering paragraph everything following the word “ hereby ” and by substituting therefor the words “ granted to the extent of directing the plaintiffs to serve an amended complaint separately stating and numbering the causes of action ”. As so modified, order affirmed, without costs. The amended complaint is to be served, if respondents be so advised, within 10 days after the entry of the order hereon. In the present complaint, claims on behalf of both the corporate respondent and the individmual respondents are commingled. Since the rights of the corporation and the rights of the individuals are basically different, the cause of action on behalf of each should be separately stated and numbered, with appropriate allegations in support of each cause. Attention is called to the fact that the present complaint does not make definite and certain in what respects appellant breached his fiduciary duties as a director and officer of the corporation and in what respects he breached his duties under the corporate by-laws. This should be corrected in the amended complaint. Nolan, P. J., Murphy, Ughetta, Hallinan and Kleinfeld, JJ., concur. [13 Misc 2d 244.]