MacColl v. American Union Life Ins.

PER CURIAM.

The action is brought to recover the sum of $300, paid to defendant on account of an alleged stock subscription of $10,-000. Among other things, the complaint alleges that on May 3, 189Í, plaintiff notified defendant of his refusal to take stock, and that thereafter defendant parted with its entire stock to others, and thereby voluntarily abandoned plaintiff’s subscription, and released him therefrom; and that the defendant was capitalized at $500,000, which was paid up in cash prior to the date of its organization. The defendant, after admitting the organization of the company, the subscription by plaintiff to the stock, and his refusal to take it, then denies, except as so admitted, each and every allegation of the complaint, and by way of further answer alleges that the $300 sought to be recovered was not paid on account of the par value of the stock, but pursuant to an agreement whereby plaintiff, with other promoters of the company, agreed to pay on the call of the treasurer a sum equal to 3 per cent, on account of his subscription to said capital stock, which was to be used as a promoters’ fund, to meet the expenses of the organization of the company, and that the same was received and used for the purposes designated. We regard this motion made on these pleadings as entirely unnecessary, and therefore properly denied by the special term. The matter set up in the answer is neither irrelevant nor redundant, and, even though it might be construed as inconsistent, there is nothing in our practice which would prevent a person setting up inconsistent defenses, provided they are properly pleaded.

Nor do we think that the answer can be regarded as sham. The real issue between the parties—as to the terms under which the $300 was paid—seems to be as to whether it was on account of part subscription to the stock or as a subscription to be used for the purpose of paying the expenses of organization, in addition to the par value of the stock. While there is in the prospectus issued by the president some warrant for the view taken by the plaintiff, this is fully offset by the agreements signed by the plaintiff, in one of which he agrees to pay 3 per cent, to meet the expenses of organization, and by the other agrees to pay the par value of the stock. The question thus presented is not to be disposed of on a motion, nor can it be said that a defense thus fortified is sham.

As already said, we think the order below was right, and should be affirmed, with $10 costs and disbursements.