Opinion of the Court, per BARTLETT, J.

[Vol. 147.

and the bill of items shows that plaintiff's services were confined mainly to looking after the interests of defendant as executrix of Robert H. Arkenburgh's estate and one or two personal matters.

A very large part of the bill of one hundred and fifty items is made up of charges for consultations with the defendant and others connected with the estate and for writing nearly one hundred letters, each of which is represented by a separate item.

The balance of the bill, with the exception of a very few items, is made up of the usual professional services incident to attending before the surrogate in an executorial accounting.

The other principal items were attending a sale by executors of real estate at Rahway, New Jersey; attending a like sale of 98th street lots in the city of New York and attending and closing purchase of 127 and 129 West 75th street by defendant.

This bill is not a long account within the meaning of section 1013 of the Code of Civil Procedure, and proof of plaintiff's claim can be readily made under a few general items and within the reasonable limits of a jury trial.

We do not mean to intimate that the relation of attorney and client may not, under certain special circumstances, involve a long account, but we hold that this is not such a case.

The orders of the Special and General Terms should be reversed, with costs.

All concur.
Orders reversed.

HENRY W. SAGE et al., Respondents, v. ANDREW R. CULVER

1. COMPLAINT

et al., Appellants.

-DEMURRER. When a complaint is met by a demurrer, on the ground that it does not state a cause of action, the pleading will be held to state all facts that can be implied from the allegations by reasonable and fair intendment, and facts so impliedly averred are traversable in the same manner as though directly stated.

Where

2. CORPORATION - ACCOUNTING-ACTION BY STOCKHOLDER. a corporation is exclusively under the control of the trustees and officers, whose acts and management are questioned, equity permits a stockholder to bring an action for an accounting in his own name.

3. PLEADING. When it can fairly be gathered from all the allegations of a complaint in such an action that the officers and directors of the corporation have made use of relations of trust and confidence in order to secure or promote some selfish interest, enough is then averred to set a court of equity in motion, and to require an answer from the defendants in regard to the facts.

4. STALE ACTION. If a claim or cause of action is barred by lapse of time, that defense must be presented by answer and cannot ordinarily be presented by demurrer.

5. COMPLAINT-DEMURRER. The complaint in an action brought by stockholders against the directors of a railroad corporation and the corporation for an accounting concerning certain transactions in regard to the management of its affairs, among other things, alleged that the defendants, as officers and trustees of the defendant railroad, took from themselves, as trustees and officers of another railroad, a lease of the latter, which they practically owned and managed, to the defendant corporation at an exorbitant rent, which arrangement had the effect to unlawfully deplete the funds and earnings of the defendant corporation and to injure the plaintiffs as stockholders therein; that the defendants, as officers and trustees of the defendant railroad, had taken from its treasury large sums of money and paid the same to themselves as individuals on account of alleged loans or advances made by them to the corporation of which the plaintiffs were stockholders; that they had concealed the origin and nature of this debt from the plaintiffs, and had made false statements in regard to the Held, that a demurrer to said complaint, on the ground of insufficiency, was properly overruled. Reported below, 71 Hun, 42.

same.

(Argued October 8, 1895; decided October 15, 1895.)

APPEAL from an interlocutory judgment of the General Term of the Supreme Court in the second judicial department,

entered upon an order made August 12, 1893, which reversed an order of the Special Term and the interlocutory judgment entered thereon sustaining defendants' demurrer to plaintiffs' complaint, and overruled said demurrer.

The nature of the action and the allegations of the complaint, so far as material, are set forth in the opinion.

George W. Wingate for appellants. None of the allegations stated in the complaint as to the actions of defendants Culver and Washington constitute a cause of action. (Clark v. Dillon, 97 N. Y. 373; Marie v. Garrison, 83 N. Y. 15; Masterson v. Townshend, 123 N. Y. 461; Coffin v. G. R., etc., Co., 18 N. Y. Supp. 787; Thomas v. M. M. P. Union, 121 N. Y. 51; Thomas v. N. Y. & G. L. R. R. Co., 139 N. Y. 163; Williams v. Ingersoll, 89 N. Y. 508.) The fact that Culver and Washington, while officers of the corporation, have dealt with it does not authorize a stockholder to sue them for an accounting in the absence of an allegation of fraud. (Union Pacific v. Credit Mobilier, 98 U. S. 569; Gamble v. Q. C. W. Co., 123 N. Y. 91; In re State Reservation, 122 N. Y. 177; Beveridge v. N. Y. E. R. R. Co., 112 N. Y. 1.) The refusal by the defendants to permit the plaintiffs to examine the books and papers of the company does not authorize this action for an inspection and accounting. (Regina v. M. M. Co., 1 El. & El. 289; Cotheal v. Brown, 5 N. Y. 562; In re Martin, 62 Hun, 557; 133 N. Y. 692; In re Sage, 70 N. Y. 220; Laws of 1892, chap. 2, § 29; High on Injunctions, chap. 1, § 29; McLaury v. Hart, 121 N. Y. 642.) Even if it should be admitted that the plaintiffs as stockholders had the right to examine at will all the books and papers of this corporation, and that the refusal of its officers to permit this examination was improper; yet even this would not authorize the present action, which in form is for an accounting. (People v. Throop, 12 Wend. 185; In re Sage, 70 N. Y. 220; People v. L. S. & M. S. R. Co., 11 Hun, 1.) A demand by an attorney to be shown the books is insufficient as a foundation for a mandamus. (People v. U. S. M. R. Co., 20 Abb. [N. C.] 192.) The great

length of time which has elapsed since the transactions complained of is a bar to the prosecution of an action for equitable relief. (Sullivan v. Portland, 94 U. S. 811; Calhoun v. Millard, 121 N. Y. 69; Dimpfell v. O. & M. R. R. Co., 110 U. S. 209; Foster v. M. R. R. Co., 146 U. S. SS; Johnston v. S. M. Co., 148 U. S. 360; Kirby v. L. S. & M. S. R. R. Co., 120 U. S. 130, 139; Miller v. Wood, 116 N. Y. 350; Carr v. Thompson, 87 N. Y. 160; Allen v. Wilson, 28 Fed. Rep. 677; Kent v. Q. M. Co., 78 N. Y. 159; Barr v. N. Y., L. E. & W. R. R. Co., 125 N. Y. 263; Spiedel v. Henrici, 120 U. S. 377, 387; Humbert v. Trinity Church, 24 Wend. 587, 595; 7 Paige, 195; Fogg v. Price, 145 Mass. 513; Selover v. Coe, 63 N. Y. 439; Harwood v. R. R. Co., 84 U. S. 78; T. L. O. Co. v. Marbury, 91 U. S. 587.) The complaint is demurrable because it fails to allege that plaintiff brings this suit on behalf of himself and all others similarly situated; that he has made application to the corporation to bring the suit, and that they have refused to do so. These assertions are indispensable to establish a cause of action. (Brinckerhoff v. Bostwick, 88 N. Y. 52, 60; Greaves v. Gouge, 16 Abb. Pr. 377; 69 N. Y. 156; Hawes v. Oakland, 104 U. S. 450; Porter v. Sabin, 149 U. S. 478; Davenport v. Dows, 18 Wall. 626; U. S. v. U. P. R. Co., 98 U. S. 610; Smith v. Hurd, 12 Metc. 371; Craig v. Gregg, 83 Penn. St. 19; Allen v. Curtis, 26 Conn. 456; Howe v. Barney, 45 Fed. Rep. 668; Hirsh v. Jones, 56 Fed. Rep. 137; Dewing v. Perdicaries, 96 U. S. 198; Wallace v. Bank, 89 Tenn. 630; McMullen v. Ritchie, 64 Fed. Rep. 262; Wertheim v. Page, 10 Wkly. Dig. 26; 84 N. Y. 674.)

William C. De Witt for respondents. When a trustee deals with himself he is bound to explain his transactions to the cestuis que trust; and, it appearing that the defendants Culver and Washington, as officers of the corporation, have paid to themselves, as for a debt, at least $250,000 out of the treasury of the corporation; have concealed the origin and nature of this debt; and, when driven to explain, have made

false statements; and it further appearing that such officers have been constantly in receipt of large revenues from the corporation in the character of officers of another corporation, and as part owners of other properties, the right of the plaintiffs to an accounting and relief in equity is supported by the strongest principles of law and justice. (3 Greenl. on Ev. 253; Cowee v. Cornell, 75 N. Y. 100; Crowe v. Ballard, 1 Ves. 221, n. 2; Gibson v. Jeyes, 6 Ves. 278; Montesquieu v. Sandys, 18 Ves. 301, n.; Harris v. Temenheere, 15 Ves. 40; Jones v. Thomas, 2 Y. & C. 498; Mechond v. Girod, 4 How. [U. S.] 553; Butts v. Wood, 38 Barb. 189; Ang. & Ames on Corp. [3d ed.] 258, 260, 304, 305; Robinson v. Smith, 3 Paige, 232; C. C. Co. v. Sherman, 30 Barb. 562, 568; Ogden v. Murray, 39 N. Y. 207; Story's Eq. Juris. § 466; Hill on Trustees, 535; A. R. Co. v. Blaikie, 30 Barb. 571; Gardner v. Ogden, 22 N. Y. 332; Butts v. Wood, 37 N. Y. 317.) It is the case of shareholders claiming that they have been wronged and damaged in their individual interests and property by the unlawful acts of officers having exclusive control of the corporation (in fact by the corporation itself), and seeking equitable redress. Such an action has always been maintainable in equity.. (Barr v. N. Y., L. E. & W. R. R. Co., 96 N. Y. 444; Dodge v. Woolsey, 18 How. [U. S.] 331, 341; Leslie v. Lorillard, 110 N. Y. 519; Hawes v. Oakland, 104 U. S. 450, 460; Ziegler v. Hoagland, 52 Hun, 385; Gray v. N. Y. & V. S. Co., 3 Hun, 383; Koehler v. B. R. F. I. Co., 2 Black, 715; Currier v. N. Y., W. S. & B. R. R. Co., 35 Hun, 355; Spelling on Priv. Corp. §§ 613, 616; Morawetz on Priv. Corp. §§ 245, 250, 255; Gamble v. Q. C. W. Co., 52 Hun, 166, 168; Rogers v. A. Works, 52 Ind. 297, 304.) In an action in equity, brought against trustees occupying a fiduciary and confidential relation to the plaintiffs, it is enough if the complaint states facts sufficient to raise in law a presumption of fraud and wrongdoing on the part of the trustees, which have caused loss and damage to the plaintiffs. Where fraud in law is thus made apparent, a specific allegation of fraud by the pleader, which would be at best opinionative, is