Hand v. Atlantic National Bank , 55 How. Pr. 231 ( 1877 )

Barrett, J.

The complaint, in its general features, is good upon the authority of Robinson agt. Smith (3 Paige, 222). But one cause of action is stated, in substance the gross negligence of the trustees, resulting in the waste and loss of the corporate assets. The assessment upon the stockholders is not averred as a distinct cause of action, but as a special element of damage. Possibly it may not be cognizable as such in an equity suit of this nature, but that is a question for the hearing. Ordinarily the corporation should'file the bill, but the stockholders may do so where, as here, the corporation is still under the control of the accused trustees. In the latter case, the corporation is necessarily a party defendant.

But, in our judgment, the receiver should also have been joined, and the court will see that he is brought in before final judgment. The trustees are entitled to have all possible claims against them settled in the one suit; and the presence of the receiver is necessary to a complete determination of the controversy.

The defendant corporation, however, cannot demur upon that ground, for the reason that it has no interest in the joinder (Hillman agt. Hillman, 14 How. P. R., 456; New-bould agt. Warrin, 14 Abb. P. R., 80).

There must, therefore, be judgment overruling the demurrer, with costs, but with leave to withdraw the demurrer and answer over within twenty days upon payment of such costs.