It is necessary to consider only the motions to dismiss the amended complaint on the ground that it does not set forth a cause of action, since we have concluded that these motions should have been granted upon that ground, and, therefore, that the injunction order should have fallen with the complaint. On a motion for judgment dismissing the complaint upon the ground of failure to state a cause of action, the defect must appear on the face of the complaint and there is no authority for the use of affidavits. (Emanuel v. Walter, 138 App. Div. 818; Reade v. Halpin, 193 id. 566.) On such a motion the facts alleged in the complaint and_ such inferences as can be fairly drawn from them *91are deemed admitted; but there is no admission of the truth of any conclusions either of law or of fact. (Frank v. Mandel, 76 App. Div. 413; Burdick v. Chesebrough, 94 id. 532; Greeff v. Equitable Life Assurance Society, 160 N. Y. 19, 29; Velsor v. Freeman, 118 Misc. 276.) .In Greeff v. Equitable Life Assurance Society (supra, 29) it is said: “ But it admitted none of the conclusions averred, nor any construction put upon the contract by the pleader. Nor did it admit the correctness of any inference drawn by the pleader from the facts alleged.”
The root of the cause of action sought to be pleaded is the contract alleged to have been made between the plaintiff and William M. Levy in December, 1913, or January, 1914. We think that this contract, according to the facts stated and the inferences fairly to be drawn therefrom, was of such a nature as to be personal to the contracting parties and capable of performance only by them. It would not survive either of them and was personal to that extent at least. It contemplated by its express terms a joint control of the corporation by the parties to the contract, the plaintiff to continue to be the president and general manager of the company and to continue to devote all of his time, energy and effort thereto for the benefit of the company. Neither of the parties was to obtain any personal advantage over the other in the purchase of stock. These agreements could be performed only by the parties. Upon the death of the plaintiff his services, which he alleges are valuable to the company, would cease. On the death of either party the stock owned by such party would change hands; and there is nothing in the agreement or in its nature which would impose the obligations of the contract upon the successors of the parties. On the contrary, the death of either party would defeat the purposes of the agreement. Also, there is nothing in the agreement which would prevent either party from selling his stock to one or more third persons. The agreement relates only to purchases of new stock to prevent undue advantage of such party over the other. The stock itself, owned and later purchased by them, was not put in trust to carry out the agreement nor in any way rendered non-transferable. To read into the agreement as alleged a provision that neither party should transfer his stock unless subject to such a trust would, in effect, make a new contract for the parties. Taking the agreement as it is alleged and the situation of the parties when the contract was entered into, as outlined in the complaint, such a stipulation was not necessarily implied.
What, then, is the effect to be given to the allegations of paragraph “ X ” of the complaint as to the transfer of stock from the *92elder Levy to his son? Paragraph “ X ” states “ that such assignment and transfer was not for value, nor a sale of such stock to the said defendant W. Maynard Levy, Jr., but was in trust for the defendant William M. Levy and his estate, and such action was taken in order that the said defendant W. Maynard Levy, Jr., could and would act for the said defendant William M. Levy in his behalf, during his illness, in carrying out said agreement and in the affairs of the company, and in the event of his death the said defendant W. Maynard Levy, Jr., could and would act for his estate in carrying out the said agreement.” In so far as this alleged trust purported to relate to the estate of William M. Levy, it meant nothing. Neither party could, by his separate act, extend the nature and duration of the contract for ,,,the benefit of his estate. The original contract did not 'survive the death of either party to it. • The stock of the elder Levy was not subject to any trust, express or implied, in plaintiff’s favor, unless to prevent the said Levy from using it personally or through his authorized agent to gain an undue advantage for himself over the plaintiff in the control of the company. In the contract between Levy and the plaintiff there were no limitations on the transfer of this stock imposed in plaintiff’s favor. Moreover, a trust for a person and “ his estate ” is too indefinite, so far as the “ estate ” is concerned, to be enforced. For whom would the stock be held; for the executors, administrators or next of kin? How long would the trust continue; until the settlement of the estate or during the lives of the next of kin, or forever?
We may assume, however, that the transfer to the younger Levy by his father was a transfer for convenience in the course of an agency and that up to the time of the death of the father, if not sooner ended by the father’s incompetency, the son was acting as agent for his father. The complaint states in paragraph “ X ” that in making such transfer of stock “ in trust for the defendant William M. Levy and his estate, * * * such action was taken in order that the said defendant W. Maynard Levy, Jr., could and would act for the said defendant William M. Levy in his behalf, during his illness, in carrying out said agreement and in the affairs of the company, and in the event of his death the said defendant W. Maynard Levy, Jr., could and would act for his estate in carrying out the said agreement,” etc. This seems to be merely the allegation of a conclusion by the pleader that this was the purpose and effect of the transfer, rather than the allegation of a fact. Then follows, however, a direct allegation of fact “ that at the same time the said defendant William M. Levy constituted and appointed the said defendant W. Maynard Levy, Jr., the *93agent of the said defendant William M. Levy with respect to his stock in the said company and with respect to said agreement hereinbefore stated between the defendant William M. Levy and the plaintiff.”
Let us first consider whether a cause of action has been alleged against William M. Levy or his estate. There is no charge in the complaint that William M. Levy, one of the parties to the contract, violated it. It is even alleged that he was incompetent. The younger Levy, acting as agent for his father, held his father’s stock. There is no allegation that the younger Levy purchased the new stock as agent for his father. The complaint assumes that the younger Levy and the defendant Kaufman acted for themselves or for the younger Levy individually and expressly alleges that they claim to be the absolute owners of such stock. It is not alleged that the elder Levy either authorized or ratified the act of his son. If there is any liability at all on the part of the former or his estate, it rests upon an act of the son done individually while he was agent for his father. The situation thus narrows down to a case of the violation of a contract between a principal and another, by an agent of the former acting for himself outside of his agency. The elder Levy not having authorized the act of his son and not having made it his own act by ratification or by seeking to derive personal advantage from it, it was not his act. In such a situation how could the contract between the plaintiff and the defendant William M. Levy be deemed violated any more than if there had been no agency and the son, on his own responsibility and without the knowledge of his father, had purchased the stock for himself? The only possible theory upon which the defendant William M. Levy might be involved is upon the principle that where an agent deals for himself and to his own advantage, in connection with the business of his agency and against the interests of his principal, the principal may require him to account. But if the principal does not choose to do so, how can a third party compel him so to do? There is no privity between them. There is not involved here a case where, if one of two innocent parties must suffer for the wrong of a third, the one who made the situation possible must bear the loss because there was no wrong done by such third party as agent or as ostensible agent, the principal not having authorized or ratified the act of his agent and not having sought to derive any benefit from the transaction within the contemplation of the contract. We think that there is no cause of action stated against the defendant William M. Levy or the representatives of his estate.
The remaining question is whether or not it has been sufficiently *94alleged in the amended complaint that the defendant W. Maynard Levy, Jr., became a party to the agreement and thus liable for his personal breach of it, or in conjunction and conspiracy with the defendant Kaufman. It is alleged in paragraph “ X ” of the amended complaint: “ That at the time of the transfer of stock from the defendant William M. Levy to the defendant W. Maynard Levy, Jr. [as agent], and for a long period of time prior thereto, the said defendant W. Maynard Levy, Jr., knew of the agreement between plaintiff and the defendant William M. Levy hereinbefore set forth, and recognized and acted upon and in pursuance of the same; that the said defendant W. Maynard Levy, Jr., was then a stockholder in said company, owning one hundred (100) shares of stock therein, which said stock was transferred to him as a gift by his said father, the defendant William M. Levy, on or about May 3, 1916; that by virtue of said transfer, and for a good and valuable consideration the defendant W. Maynard Levy, Jr., thereupon became a party to said agreement, and ratified, adopted and confirmed the terms thereof, and agreed to observe and carry out the terms thereof; and did thereupon and thereafter observe and carry out the terms thereof and the purpose for which the said stock was transferred to him by voting his stock in accordance therewith in order to carry out and perpetuate the same.” By virtue of said transfer of 100 shares of stock from his father in 1916, W. Maynard Levy, Jr., did not thereby become a party to the agreement, because he received them as a gift and they became his. There were no conditions which attached to the stock itself. As the contract between the plaintiff and the elder Levy did not impose any limitation upon the transfer of his stock by the elder Levy, the stock, when transferred, was not subject to any conditions of the agreement, nor could third persons be made parties to the contract nor compelled to observe the contract obligations by merely becoming transferees of the stock, knowing of the agreement and acting in pursfiance of it by voting their stock in accordance therewith. So far as William M. Levy and the plaintiff were concerned the contract was binding. So far as such third persons were concerned, whether friends, strangers or relatives of William M. Levy, it was not binding. The allegation above set forth, “ that by virtue of said transfer, and for a good and valuable consideration the defendant W. Ma/ynard Levy, Jr., thereupon became a party to said agreement,” etc., is the statement of a mere conclusion of law. It would even appear that this allegation is so made to avoid an allegation of fact that there was an actual agreement for a mutually valuable consideration between the three parties or between the plaintiff and the defendant W. Maynard *95Levy, Jr. How could the latter become a party to the agreement without changing it? What was he to do? Was he to divide any stock purchased by him between the three parties or only with the plaintiff? How could he become a party without agreement to that effect with the plaintiff? There is no allegation that for a valuable consideration he made any agreement with the plaintiff to become a party. But apart from these considerations, the said allegations as to his becoming a party to the agreement are the mere statement of a conclusion. We think that the amended complaint fails to state facts sufficient to show that the defendant W. Maynard Levy, Jr., became individually a party to the contract and, therefore, does not state a cause of action against him for a breach of it. It follows that no cause of action is alleged against him and the defendant Kaufman for acts in conspiracy to breach the contract, since the contract was not shown to have any binding effect upon them individually, or either of them. It further follows that since the complaint is insufficient as to any party, there can be no temporary injunction.
The three orders appealed from should be reversed and the complaint dismissed, with costs of each appeal.
All concur; H. T. Kellogg, J., not sitting.
Order reversed on the law, with ten dollars costs and disbursements, and complaint dismissed as to defendants Frances W. Levy and others, as executors of the estate of William M. Levy, deceased, with costs.