Mappier v. Mortimer

The complaint states two different causes of action. The defendants are sought to be held upon the first because of their being stockholders. There is no averment in the first cause of action that the defendants were trustees, and it would be inappropriate to that cause of action. The second cause of action is based upon an omission to do a duty which belonged to the defendants, as trustees. The first cause of *459action is founded on implied contract (Corning v. McCullough, 1 N. Y. [1 Comst.], 47). The second is against a trustee, upon a liability created by operation of law (35 N. Y., 412 ; 19 Barb., 529).

These causes of action do not belong to the same class; they are not both upon contract, neither are both against a trustee. • They cannot, therefore, be united (Code, § 167), and the demurrer on that ground, is, therefore, well taken.

Judgment for plaintiff on demurrer, with leave to plaintiff to amend, on usual terms.