Voron v. Chait , 150 N.Y.S. 433 ( 1914 )

Ingraham, P. J.:

Motion was originally made to strike from the amended answer two allegations which were inserted in denials of allegations of the complaint, and also certain allegations which were inserted in a defense and counterclaim. Subsequent to the entry of this order the plaintiff demurred to the answer alleging the separate defense and counterclaim, and that demurrer was subsequently sustained, and from that the defendants have not appealed.. As to these allegations no question is presented on this appeal as, the demurrer to the separate defense and counterclaim having been sustained, that defense and counterclaim were eliminated from the answer, and for that reason an appeal from another order involving the defense and counterclaim has been dismissed. The only question on this appeal is whether the allegations annexed to the denials in the 2d and 4th paragraphs of the answer should have been stricken out. In the 2d paragraph the answer alleges: “II. Answering the allegations contained in Paragraph XVI, defendant denies the same - * *. ” That is a good denial and properly pleaded. The further allegation in that clause in the answer, however, has no relevancy to any allegation contained in the complaint, is no defense to any cause of action there alleged, and to be available at all to the defendant it was necessary to allege it as a separate defense. Whether or not the defendant charged the plaintiff with fraud is entirely immaterial. It could not affect the right of the plaintiff, suing as a representative of the corporation, to compel the individual defendants to account for interference with the funds and property of the corporation of which he was an officer and a director. It is entirely clear, therefore, that this allegation was improperly inserted in the answer and should have been stricken out. The same applies to the 4th paragraph of the answer, wherein the defendant denies the allegations in paragraph XVIII of the complaint and adds an allegation that the plaintiff “ was dishonest in his transactions, both with the company and with his customers, and that he did make misrepresentations to customers, as to the quality of the goods sold to them.” This, also, is entirely immaterial as relating to the plaintiff’s cause of action. As before stated, the plaintiff is not seeking to enforce any right as an individual, but he is suing in behalf of the corporation of which both are officers and directors, to compel the defendant to account for his acts as officer and director of the corporation. It is also quite immaterial whether the clause of the complaint which this denies was at all material. The defendant could either admit or deny the allegation of paragraph XVIII of the complaint; but alleging that the plaintiff was dishonest and had defrauded the corporation had no relation to a claim that the defendant had also so acted. It follows that the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion to strike out these clauses in the 2d and 4th paragraphs of the answer granted, with ten dollars costs. Clarke, Scott, Dowling and Hotchkiss, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted as stated in opinion.