Opinion
September 10, 1912.
Henry C. Frey, for the appellant.
James E. Smyth, for the respondent.
This is an appeal from an order denying a motion to dismiss the complaint for failure to state a cause of action. The motion was denied and the action referred and stayed pending this appeal. The appeal involves the General Corporation Law (Consol. Laws, chap. 23 [Laws of 1909, chap. 28], §§ 90, 91). Section 90 provides that an action may be maintained against the trustees, directors, managers or other officers of the corporation to compel them to account for their official conduct, or to pay to the corporation which they represent any money or property which they have acquired to themselves, or transferred to others, or lost, or wasted, by or through any neglect of or failure to perform, or by other violation of, their duties, and section 91 enables the action to be brought by a creditor of the corporation, or by a trustee, director, manager, or other officer of the corporation, "having a general superintendence of its concerns." This action is brought by the present treasurer of the corporation against the defendant, once its treasurer, to recover divers sums of money, concerning which he asks an accounting. The corporation is made a party defendant, but not served. The appellant treats the action as a stockholder's action, and insists that the cause of action disclosed, if any, is in the corporation and not in the treasurer, and that there is no allegation that the treasurer has demanded that the corporation bring the action in its name or that the facts render such demand unnecessary. It is true that such allegation is wanting, but if the treasurer of the corporation may be regarded as having "general superintendence of its concerns," then such demand is not necessary. The relation of such words to the class of persons enabled to bring the action is not clear. A trustee or director has not such general superintendence, but the language would apply to a manager "or other officer of the corporation." The statute in its terms is similar to sections 1781 and 1782 of the Code of Civil Procedure as it formerly existed, and sections 33 and 35 of article 2 of title 4 of chapter 8 of part 3 of the Revised Statutes (2 R.S. 462, 463). Attention is not called to instances in which a treasurer has brought such an action. He is not a manager or other officer having general superintendence of the corporation and thus broadly concerned with its entire interests and policy as well as the protection of it and its property. He is, in this regard, a subordinate, elected for a definite limited purpose and for the performance of specific functions. So far as the facts appear this is merely the case of a person superseded as treasurer, going from office without leaving with or turning over to the corporation moneys that belong to it and for which the corporation has its usual remedy. Such considerations would require reversal of the order, but it appears that the order is not appealable inasmuch as it was made upon motion at the opening of the trial, whereupon no disposition of the action followed. Such practice does not obtain.
The appeal should be dismissed, with ten dollars costs and disbursements.
HIRSCHBERG, BURR, WOODWARD and RICH, JJ., concurred.
Appeal dismissed, with ten dollars costs and disbursements.