This action, like the one brought by the same plaintiffs, in which the appeal of the defendants Camp and Smith is decided herewith (Holmes v. Saint Joseph Lead Co., No. 2, 168 App. Div. 688), is an action by stockholders of the St. Joseph Lead Company to compel the defendant directors of the company to
The complaint alleges in substance that the St. Joseph Lead Company, a domestic corporation, of which defendant Smith is a director, owns practically the entire outstanding capital stock of the Doe Run Lead Company and of the Mississippi River and Bonne Terre Railway, which latter company in turn owns the entire outstanding stock of the St. Francois County Electric Railroad Company, and all of which are corporations organized and operating in Missouri; that these corporations all use considerable quantities of coal, and for some years immediately prior to the commencement of the action had contracted for the purchase of Carterville coal, a superior quality of coal produced in the Carterville district of Illinois; that for some years coal of an inferior quality and a lower price has been delivered instead of Carterville coal, though the corporations have paid the contract price for Carterville coal; that the plaintiffs have demanded that a thorough investigation of the matter be made and steps taken to recover the losses sustained, but that no “ adequate ” investigation has been made nor any action commenced to recover such losses except those sustained by the St. Francois County Electric Railroad Company, and that the defendant directors have refused and have voted not to make any further investigation or take any further action except in the case of the St. Francois Company. The judgment demanded is that the defendant directors account for the losses sustained by the lead company and that judgment be entered against them for the amount so determined.
I am of the opinion that this complaint fails to state a cause of action against the appellant. Disregarding the fact that this action is brought by stockholders of the St. Joseph Lead Company against its directors, who would not ordinarily be accountable in this action for losses sustained by the subsidiary companies, the complaint shows that at the request of the plain
It is true there are general allegations of losses sustained and that the alleged fraudulent practices grew up through the connivance and knowledge of some of the officers or employees of the companies, but there are no allegations which charge this appellant with a breach of trust or impose upon him the burden of defending his acts as a director. As has been pointed out in the other case to which reference has been made, decided herewith, the appellant is not liable for an error of judgment and his refusal to make such further investigation as the plaintiffs deem adequate and institute litigation, especially where the financial responsibility of the prospective defendants is not disclosed, does not establish that he was negligent or derelict in any way in performing his duties as a director.
The order appealed from, therefore, is reversed, with ten dollars costs and disbursements, and the demurrer sustained, with ten dollars costs, with leave to the plaintiffs to serve an amended complaint on payment of costs.
Ingraham, P. J., Laughlin, Dowling and Hotchkiss, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, with leave to plaintiffs to serve amended complaint on payment of costs in this court and in the court below.