Scharf v. Warren-Scharf Asphalt Paving Co.

It is a little difficult to see how many of the allegations in this complaint can be material to any cause of action, but considering the prayer for relief it would seem that the pleader had in mind the allegations of two distinct causes or action by this complaint: First. A cause of action by the corporation against its directors and those to whom the directors had transferred property of the corporation without security, to recover possession of such *440property so transferred, and the- damages sustained by the corporation in consequence of such wrongful acts of the directors. This -would be but one cause of action, however numerous the various items for which plaintiffs need ask that the directors be held responsible to the corporation. This is enforcing a right of the corporation, and the plaintiff asks the court to enforce this right because the •corporation itself is under the control and management of the directors who are alleged to be in default, and whose wrongful acts have •caused the injury to the corporation. This is a cause of action which vests in the corporation, not in the plaintiff, and the plaintiff has a right simply to ask a court of equity to exercise its power to compel these directors and trustees, and others who have succeeded to the property which really belongs to the corporation, to restore to the corporation what has been improperly taken from it.

Mixed up with this cause of action, however, are certain allegations in the complaint upon which the plaintiff asks a personal judgment in favor of himself against the Warren-Scharf Asphalt Paving Company for $50,000 damages. It is quite clear that this is a perfectly distinct cause of action from one which seeks to enforce a right vested in the corporation against the other defendants; and it would seem that such two causes of action are improperly united in this complaint, and that the defendants have a right to have them separately stated, one being a cause of action which he is enforcing of his own right, and the other a cause of action which he is enforcing in the right of the company, and the judgment in the latter case could only be that the other defendants restore to the company the property, or the value thereof, of which they have deprived the corporation.

We think, therefore, that there are two causes of action set forth in the complaint, and that upon the plaintiff’s appeal the order should be modified so as to require the plaintiff to separately state and number such two causes of action.

As this complaint, in consequence of this order, will have to be amended, it does not seem necessary for us to pass upon the appeal by the defendants from the order which refuses to strike out certain allegations of the complaint as irrelevant, immaterial or redundant and scandalous, as these allegations may not appear in the amended complaint.

*441The order should be modified as suggested, and as modified affirmed, without costs.

Barrett, Rumsey, Williams and Patterson, JJ., concurred.

Order modified as directed in opinion, and affirmed as modified, without costs.