The facts are stated in the opinion of Mr. Justice Dowling. The 13th paragraph of the complaint includes the allegation of a demand upon the corporation to bring the -action and its refusal, and the further allegation that the defendants who have acted fraudulently are in control of the corporation. It is true that the fact stated in this further allegation is stated as a reason for the refusal of the corporation to sue. To my mind it is wholly immaterial what the pleader originally had in mind when he thus stated the fact. With this fact alleged in the complaint there can be no doubt, upon failure to prove a demand and refusal, if facts are proven justifying this allegation, that the complaint could not be dismissed on the ground that the action was improperly brought by an individual stockholder. That this fact is stated to be the reason for the refusal of the corporation to bring the action is probably unnecessary, but to strike out the allegation entirely is to strike out an allegation in the complaint that is material and relevant to plaintiff’s right of recovery. For *700this reason the motion was improperly granted and the orders should be reversed, with ten dollars costs and disbursements, and the motions denied, with ten dollars costs.
Latjghlin and Greenbaum, JJ., concur; Clarke, P. J., and Dowling, J., dissent.