Mutual Life Insurance v. McCurdy , 103 N.Y.S. 829 ( 1907 )

Ingraham, J. (dissenting in part):

I concur with Mr. Justice Laughlin in the conclusion at which he has arrived, except as to the fifth cause of action. The action is at law, to recover for moneys of the plaintiff which the defendant, as its president, has caused to be paid for purposes other than corporate purposes. The first four causes of action are to recover for certain specific payments made for political purposes or contributions to political parties. The fifth cause of action is upon an allegation that “at various times subsequent to the first day of January, 1885, and to the plaintiff unknown, the defendant made, or authorized to be made, or knowingly or negligently permitted to be made, in furtherance of a single policy or design, certain payments aggregating not less than two hundred thousand dollars ($200,000), out of the plaintiff’s moneys, for certain political purposes, to wit, to' defray the expenses of the annual campaigns conducted by a political party in furtherance of the election of the nominees of the said party for political offices.” Each payment would be a wrongful act for which the defendant would be liable if the payment made was for an illegal purpose, or without authority from the corporation. While the officers of a corporation may be called to account for their illegal acts, or for an illegal disposition of the money or property of the corporation, in an action at law I think that each illegal disposition of a corporation’s property is a separate cause of action. The distinction between an action in equity to call an officer’ of a corporation to account and an action at law against an officer of a corporation to recover for an illegal or unauthorized disposition of the moneys of the corporation that the officer has made is clear; for when a trustee or person holding money or property in a fiduciary relation is called upon to account, he can in one action be required • to account for all the money or property of the corporation that he has received and for which he is accountable; but in an action at law to recover from an officer of a corporation for money of the corporation that he lias illegally- or improperly paid out, each payment thus illegally or improperly made is a separate cause, of action' which must be separately pleaded.

This is not an action to recover damages sustained by the corporation for negligence or wrongdoing which lias caused the corporation damage, but to recover specific money of the corporation paid by the president for illegal or unauthorized purposes.

I think, therefore, that the plaintiff should he required to separately number the various causes of action alleged as a fifth cause of action.

Order affirmed, with ten dollars costs and disbursements.