It seems to me that the complaint states but one cause of action in equity.
As is clearly pointed out in the prevailing opinion, the cause of action inuring'to the plaintiff because of defendants’ legal declara-, tion of a dividend, and of their refusal to pay the same, gave.to the plaintiff a right of action at law to collect the same. In the case at bar it is alleged, and the gravamen of the complaint is, that the defendants have conspired together and have wrongfully deprived the plaintiff and other persons similarly situated from receiving the benefits of the corporation of which he and his associates were stockholders, because of the fraud and improper conduct of the defendants in the premises. The fact that the dividend referred to had been declared and unpaid was only referred to for the purpose of showing that such fact with others alleged tended to prove a fraudulent scheme and conspiracy on the part of the defendants to deprive the plaintiff of his rights in the premises. The allegation is that the defendants did certain illegal acts, one of which was to refuse to pay a dividend which had been duly declared, which, with the other illegal acts which had been committed, tended to deprive the plaintiff and others similarly situated of their legal rights in the premises.
Under such circumstances we can conceive of no reason why, in *784such an action, a plaintiff may not recover what is due and owing to him arising under an action at law and at the same time secure the equitable relief to which he is entitled.
Concisely stated, the complaint alleges that the defendants were derelict in their* duty in that, among other things, they failed to pay the dividend in question, and one of the chief charges of bad faith and dereliction of duty' of the defendants was their failure and refusal to pay the dividend in question. It cannot be said that because the complaint alleged a declaration of such dividend, and the refusal of the corporation to pay the same, that a separate cause of action was stated independent of the other allegations of the complaint. The chief cause of action alleged in the complaint is conspiracy, and one of the facts tending to show such conspiracy is the failúre to pay the dividend, which had been duly declared and which had become a debt against the company.
I conclude that the demurrer was properly overruled and that the interlocutory judgment should be 'affirmed, with costs, with leave to the defendant to plead over upon payment of the - costs of this appeal and of the demurrer.
Williams, J., concurred.
Interlocutory judgment reversed, with costs, and demurrer sus-' tained, with costs, with leave to the plaintiff to plead over upon payment of the costs of the demurrer and of this appeal.