Misc.] Supreme Court, August, 1896. such interest, to the amount of $500,000, in violation of said contract, has been paid over and credited to the death or mortuary fund for the benefit of all the members of the association as well those who have been members for the period of five years as those who have been members for a shorter period; that the amount of interest thus diverted from those who have been members for a period of five years, including this plaintiff, and paid over to the death or mortuary fund, is about $500,000; that no portion of the surplus of the reserve fund over and above the sum of $1,000,000 has been divided among the members, including this plaintiff, as provided and agreed in said policy and contract issued to plaintiff; that in violation of said reserve fund defendant has recklessly scattered large sums on deposit in England and elsewhere, the amount thus diverted from the trust created for the policyholders to whom it belongs being $400,000; that in the course of their extravagant dealings with the property which should be held in trust for their policyholders, said company is proceeding to speculate with the same and has or is about to purchase a large amount of real estate and erect an enormous building in the city of New York; and said complaint asks judgment, amongst other things, that the defendant henceforth set aside for the said reserve fund from the amount of the assessments received twenty-five cents upon each $1,000 of insurance; that the sums diverted from said fund be restored thereto; that the amount of said fund over and above the said sum of $1,000,000 be divided among the policyholders according to the terms of the contract between defendant and the policyholders, the total number of policyholders and the sum to be paid to each being properly ascertained, and that the portion of the reserve fund not distributed amongst policyholders be securely invested. Still more briefly stated, these allegations amount to a complaint upon the part of plaintiff that defendant in and by its contract with him agreed to build up in certain ways a reserve fund, and that when said fund exceeded a certain amount the surplus should be divided amongst him and other people entitled thereto; that defendant has so far violated its agreement as not to properly build up and maintain said reserve fund and has not divided the surplus thereof amongst plaintiff and others as agreed, and he asks judgment of this court that defendant be compelled to carry out its contract in these respects. Assuming, as upon the argument the court is bound to, the truth of these allegations, it would seem as if defendant had so violated an agreement with plaintiff as to entitle him to relief from a court of equity. Supreme Court, August, 1896. [Vol. 17. As heretofore stated, there are many allegations and suggestions of complaint against defendant outside of those above summarized. Very likely some of them may be such as are pertinent to this action and as may entitle plaintiff to relief herein, while others may not be material or furnish the basis for relief in this action. All of the allegations, however, are contained in one count, and if that count, amongst all its allegations, contains sufficient to state and constitute a cause of action, then this ground of demurrer now being discussed should be overruled. Seaver v. Hodgkin, 63 How. Pr. 128; Price v. Brown, 10 Abb. N. C. 67, 71; Sage v. Culver, 147 N. Y. 241. If I am correct in my views, there are sufficient allegations to state and constitute a cause of action, and plaintiff, assuming that he shall finally establish his complaint, would be entitled to relief within the principles involved in the decisions of the following cases: Boardman v. Lake Shore, etc., R. R. Co., 84 N. Y. 157; Brown v. Buffalo, etc., R. R. Co., 27 Hun, 342; Jermain v. Lake Shore, etc., R. R. Co., 91 N. Y. 483. It is further urged by the third ground of demurrer that there is a defect of parties defendant to this action; that the acts and omissions alleged were the acts and omissions of the officers and directors of the defendant corporation, and that they should have been joined as parties. It does not seem to me that this is so in this action, at least as to the cause of action above outlined. If the action were brought by a stockholder of a corporation to compel performance by its directors of the duties which they owed that corporation, or to restrain the commission of acts by them which were in violation of obligations to the corporation, it would undoubtedly be necessary to make such directors parties to this action. The action in such a case would involve the relations between the directors and the corporation and the former would be necessary parties. In this case, however, the complaint sets out as its cause of action a contract and obligation upon the part of the defendant with and to the plaintiff to perform certain acts. The contract and obligation is that of the defendant corporation to the plaintiff, and a judgment, if obtained by him, requiring such corporation to perform its agreement will be sufficient, even though individual directors and officers were not parties as such to the action. They will be bound by the trial and judgment against the corporation of which they are officers and agents. They are no more necessary as individ Misc.] Supreme Court, August, 1896. uals to an action to enforce the contract than they were to the execution of the contract. Chase v. Vanderbilt, 62 N. Y. 307; Webb v. Vanderbilt, 39 N. Y. Super. Ct. 4; Boardman v. Lake Shore, etc., Ry. Co., 84 N. Y. 157; Jermain v. Lake Shore, etc., Ry. Co., 91 id. 483. Finally, it is urged that plaintiff has not legal capacity to sue, and, in the statement of the same ground of demurrer, that it does not appear that he has sought any relief for his alleged grievances within the corporation, and has not requested any action to be brought by the officers of the corporation, etc. So far as the latter suggestions are concerned, they would be more proper to that ground of demurrer already considered which maintains that plaintiff's complaint does not state a cause of action. If defendant was correct in its view that this was an action which should be properly brought against the officers of the corporation as distinguished from the corporation itself, there would be force in these suggestions now being considered. But taking the view already indicated by me, that this is an action by plaintiff against the defendant corporation to enforce a contract and obligation made by it to him, and that it is not an action in which it is necessary even to join the directors as defendants, I do not, of course, regard it as necessary that any demand should have been made upon the officers of the corporation or that any previous efforts for relief "within the corporation," as expressed by the demurrer, should have been made. Taking up now the first part of this ground of demurrer, I find that it is based upon chapter 400 of the Laws of 1890, which provides, in substance, that no order, judgment or decree providing for an accounting or enjoining, restraining or interfering with the prosecution of the business of any life or casualty insurance company, association or society of this state, or appointing a temporary or permanent receiver thereof, shall be made or granted otherwise than upon the application of the attorney-general on his own motion or after his approval on the request in writing of the superintendent of the insurance department, except in an action by a judgment creditor or in proceedings supplementary to execution. This act is broad in its terms and little or no light has been thrown upon its meaning by adjudications. Without attempting to determine all that it may or does mean and cover, I do not believe that it sustains defendant's demurrer. Even assuming that this act, if applicable to a case of this kind, would furnish the basis for this demurrer Second District Court, August, 1896. [Vol. 17. rather than present a question of defense to be raised in other ways, I do not believe that the act is applicable to this action brought by an individual to enforce a private contract. No case has been called to my attention construing said act as here claimed by defendant, and it has been ruled by the attorney-general in a case somewhat similar in its nature to this that the same was not applicable. In the Matter of the Application Touching the Contract of the New York Life Insurance Company with William H. Beers, Opinions Attorney-General, 1892, p. 167. It was urged by defendant's counsel upon the argument that plaintiff could not secure the relief claimed and desired by him in this case because the trustee to whom the custody of the reserve fund was committed was not a party, but that question is not presented by any of the grounds of demurrer. In accordance with these views formal decision and interlocutory judgment may be prepared overruling defendant's demurrer, with costs, with the usual provisions allowing defendant to otherwise plead or defend herein. Demurrer overruled, with costs, with leave to answer. ROBERT BOYD, Landlord, v. WILLIAM F. SAMETZ, Tenant. (And two other cases.) (Second District Court of New York, August, 1896.) Summary proceedings - Landlord who has conveyed cannot institute. Summary proceedings cannot be maintained in the name of the original landlord after he has conveyed all his interest in the property. SUMMARY proceedings to remove tenants on the ground that they held over without permission after expiration of the term. Henry Daily, Jr., for petitioner. Walter I. McCoy, for tenant. GOLDFOGLE, J. These summary proceedings were instituted to recover possession of the premises Nos. 30 and 32 Elm street in the city of New York, upon the alleged ground that the tenants held over and continued in possession of them without the permission of the landlord. They were instituted by Robert Boyd, who avers that at the time of the letting he was the owner of the property, Misc.] Second District Court, August. 1896. and that the several leases made by him to the respective tenants terminated before the instituting of these cases. The tenants aver, in their respective answers, that on the 16th day of July, 1896, and before the commencement of these proceedings, the petitioner conveyed the property to the New York Life Insurance Company, and that the deed to the latter was delivered, and thereafter recorded in the office of the register of this county. This fact is conceded by the petitioner, and the question arises, can the proceedings be maintained in the name of Boyd, the grantor? It is true that the tenant cannot controvert the title of his landlord, nor draw its validity into question in these proceedings, but the averment that after the relation of landlord and tenant was formed between Boyd and the respondents the former conveyed away his interest to a third person is not disputing the title of the lessor, nor is such averment an allegation controverting the title of the original lessor. The statute permits these proceedings to be instituted, not alone by the original lessor, but by his representatives or grantees. It contemplates the cases where, after a lease has been made, the landlord conveys away his interest in the premises. There the proceedings must be had in name of such grantee, for the original lessor no longer has an interest in the premises. Upon the conveyance by Mr. Boyd to the New York Life Insurance Company, the relation of landlord and tenant attached as between that company and Mr. Boyd's lessees. If the latter, for the act of holding over after the expiration of their terms, are to be treated as trespassers, every remedy that can be invoked as against a trespasser would lie in the name of the New York Life Insurance Company, but, if they are to be treated as tenants holding over after the expiration of their respective terms, the deed to the company gave the latter ample warrant to apply for the removal of the tenants under the statute relating to summary proceedings. In these proceedings it must appear that the tenant is holding over after the expiration of his term without the permission of the landlord. Suppose after Boyd delivered his deed to the New York Life Insurance Company the latter had assented to the tenant remaining in possession, could Boyd petition for the removal of the tenants upon the ground that their their tenancies had expired? This is but one of the many instances that could be cited to show that a lessor who has parted with his entire estate cannot institute proceedings for |