Opinion
March 12, 1945.
The complaint contains two separate causes of action. The first cause of action is for rescission of an agreement made between plaintiff and defendant Walter R. Ray. The second cause of action is a representative stockholder's action, brought by plaintiff, on behalf of the three corporate defendants, against the individual defendants, as officers or directors, or both, of the three corporations, alleging waste in that they paid to themselves excessive salaries, sales and travel expenses and legal fees. Defendants moved to compel plaintiff to divide into separate paragraphs the allegations contained in the first three paragraphs of the first cause of action and separately to state and number each cause of action contained in the second cause of action. The motion was denied, and defendants appeal. Order modified on the law by striking out the words "in all respects denied" and inserting in place thereof a provision granting the motion to the extent of directing plaintiff to serve an amended complaint separately stating and numbering the causes of action pleaded in the second cause of action. As so modified the order is affirmed, with ten dollars costs and disbursements to appellants. (Rules Civ. Prac., rule 90; see, also, Melniker v. American Title Guaranty Company, 253 App. Div. 570.) Carswell, Johnston and Lewis, JJ., concur; Close, P.J., and Adel, J., dissent and vote to affirm without modification.