(dissenting):
The defendants demurred to the plaintiff’s complaint in this action and obtained a judgment in théir favor, from which the plaintiff has appealed. My associates find the complaint good as to some of the defendants, and bad as to some others. The demurrer is to the entire complaint which professes to set forth but one cause of action, and if the complaint be vicious on any point reached by the demurrer it must fall as an entirety.
Independent of this, however, so long as the doctrine of the court of appeals, as annormced in the case of Greaves v. Gouge (69 N. Y., 157), continues in force it will condemn this complaint. It was there decided that an action for injuries caused by the misconduct of an officer of the corporation must be brought in the name of the corporation, unless it or its officers on being applied to for such purpose by a stockholder refuse to bring such action.
The same doctrine was substantially reiterated by the court of ’ *362appeals in the case of Brinckerhoff v. Bostwick (88 N. Y., 56) and nothing contained in the case of Barr v. New York and Canada Railroad (96 N. Y., 448) is at war therewith. In this last case the opinion of the court was prepared by the same judge who wrote the opinion in the case of Greaves v. Gouge {supra); and this last case is not even mentioned in the opinion. Assuming, therefore, that the case of Greaves v. Gouge still furnishes the law for the determination of this case, the plaintiff cannot maintain this action under his present complaint. Besides this, the plaintiff makes no cáse on the merits; there is no allegation of wrong, or falsehood, or fraud or individual intrigue for private advantage. The legality of the contract against which so much complaint is made is fully established by the decision of the court of appeals in the case of Van Cott v. Van Brunt (82 N. Y., 535).
My conclusion on the whole case is that the judgment appealed from should be affirmed.
Judgment for defendants upon demurrer reversed, with costs, except as to judgments in favor of Canda, Bard & Studwell, which .are affirmed, with costs.