#### Patrick A. Powers, Appellant, *v.*Universal Film Manufacturing Company and Carl Laemmle, Respondents.

First Department,

June 12, 1914.

Pleading — motion for judgment on pleadings — action by transferee of stock to compel corporation to make transfers — complaint stating cause of action—right of stockholder to have stock divided into blocks and new certificates issued—rights of transferee enforcible by action—parties defendant — interpleader of other claimant.

In determining whether a complaint states a cause of action it should be liberally construed and should not be dismissed if any facts are alleged which justify a recovery. Nor should it be dismissed because the plaintiff has asked for too much, too little or for the wrong relief.

Complaint in an action brought by the transferee of stock certificates against the corporation to compel it to make transfers upon its books and to issue new certificates to the plaintiff examined, and *held,*to state a cause of action.

The holder of a certificate covering a certain number of shares of stock, on tendering the same to the corporation, is entitled to have it reissue to him other certificates, dividing the stock into several blocks as indicated by him, and he may enforce that right by action if his request be refused.

So, too, on tendering stock duly transferred to him by the original holder, he is entitled to have the transfer made upon the books of the corporation and to have new certificates issued to him.

Such transfers cannot be legally refused merely because a bank holding notes which were given in part payment on the purchase of the stock from the original holder has refused to accept the payments of the notes as they fell due, or to surrender the same, that being a matter between the bank and the original holder.

Under the circumstances, a refusal to make the transfers aforesaid cannot be justified upon the ground that a person, president of the corporation and controlling its management, claims to own the stock by virtue of an assignment from the original holder. Nor should the plaintiff make the other claimant a party defendant, although, *it seems,*the corporation may interplead him.

Appeal by the plaintiff, Patrick A. Powers, from three orders of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of April, 1914. Two of said orders sustained the separate demurrers of the defendants to the amended complaint herein and granted their separate motions *807for judgment on the pleadings; the third order denied plaintiff’s motion for judgment on the pleadings.

*Edward W. Hatch,*for the appellant.

*Waldo G. Morse,*for the respondent Universal Film Manufacturing Company.

*John B. Stanchfield,*for the respondent Carl Laemmle.

McLaughlin, J.:

The defendants separately demurred to the complaint upon the grounds (1) that it did not state facts sufficient to constitute a cause of action; (3) that causes of action had been improperly joined, and (3) defect of parties defendant. After the demurrers had been interposed, each party moved for judgment on the pleadings. The plaintiff’s motion was denied and each of the defendants’ motions was granted, upon the ground that the complaint did not state a cause of action. The plaintiff appeals from each order.

The complaint is by no means a model pleading, and it is somewhat difficult to ascertain from it just what cause of action the pleader attempted to set forth. In determining whether a cause of action is set forth, the complaint is to be liberally construed, and if there are any facts alleged which justify a recovery, then it ought not to have been dismissed. *(Sage*v. *Culver,*147 N. Y. 241; *Abbey*v. *Wheeler,*170 id. 122.) Nor should the plaintiff be turned out of court because- he has asked for too much, too little, or the wrong relief. *(Murtha*v. *Curley,*90 N. Y. 372.)

Applying these rules to the facts pleaded, I think there is only one cause of action stated, and it is against the Universal Film Manufacturing Company. It is alleged that on the 5th of May, 1913, one Horsley was the owner of 1,250 shares of the preferred and 1,540 shares of the common stock of the Universal Film Manufacturing Company of the par value of $100 each; that on that day, for a valuable consideration, he gave to the plaintiff an option for a period of thirty days, with the right of certain renewals, to purchase the same for the sum of $167,400 — $57,400 in cash at the time the option was exercised, *808and $110,000 by plaintiff’s twenty-four promissory notes of equal amounts, payable monthly; that pending the exercise of the option by the plaintiff, Horsley deposited certificates representing said stock with the Bank of the Metropolis in the city of New York, to be held by it in escrow until the option was exercised and the payment made as stated; that on the 13th of June, 1913, the plaintiff exercised his option to purchase said stock by paying to the Bank of the Metropolis $57,400 in cash and delivering to it his twenty-four promissory notes, payable to the order of Horsley for $4,583.33 each, aggregating the sum of $110,000; that on the same day the said 1,540 shares of common stock were duly transferred on the books of the Universal Film Manufacturing Company to the plaintiff and he now owns and holds a certificate therefor, which is transferable upon the books of the corporation upon the surrender by plaintiff, or his attorney, of the certificate; that on the 8th of July, 1913, the plaintiff presented the certificate for 1,250 shares of the preferred stock with a written power of attorney executed by Horsley to transfer the same to him, and demanded that such transfer be made, which the corporation refused to do. It is also alleged that on the 22d of July, 1913, plaintiff again applied to the corporation and exhibited to it the certificates for 1,250 shares preferred and 1,540 shares of common, together with proper instruments for their transfer; offered to surrender the same, and at the same time deliver to the corporation sufficient transfer stock tax stamps to make the transfer to the plaintiff; and demanded that a certificate be issued to him for the 1,250 shares preferred; also that it deliver to him twenty-three certificates for 64 shares each and one certificate for 68 shares, in place of the certificate representing the 1,540 shares of common; that the corporation and its officers refused to transfer the shares of stock or any part thereof, or to make and deliver to the plaintiff the proper and usual certificates representing the same.

If these allegations of the complaint are true, then the plaintiff is the holder of a certificate representing 1,540 shares and is legally entitled to have the corporation deliver to him certificates in the form requested. *(Bedford*v. *American Aluminum Co.,*51 App. Div. 537.) He is also the holder of a cer*809tificate representing 1,250 shares preferred, which stand on the hooks of the corporation in the name of Horsley; and Horsley has executed a power of attorney directing the corporation to transfer the same to the plaintiff. The corporation having refused to make the transfer, the plaintiff is entitled to the aid of the court in compelling it to do so. *(Cushman*v. *Thayer Mfg. Jewelry Co.,*76 N. Y. 365; *Rice*v. *Rockefeller,*134 id. 174; *Middlebrook*v. *Merchants’ Bank,*41 Barb. 481; affd., 3 Abb. Ct. App. Dec. 295; 10 Cyc. 605.)

It is true there are allegations in the complaint to the effect that the plaintiff has paid to the bank only one of the notes delivered to it and the bank has refused to accept payment of the others falling due, or to surrender the same, but this is a matter between the bank and Horsley. The bank is not a party and the plaintiff is not injured because the barde will not accept his money. The plaintiff has obtained possession of the certificates representing the stock which Horsley agreed to sell to him and the common has actually been transferred by the corporation to the plaintiff. All that he asks in regard to that is to have other certificates issued in place of the one which he now has, and to this he is entitled. As to the preferred, he is entitled to have the transfer made, having presented the certificate issued to.Horsley, with a power of attorney authorizing such transfer to be made. The corporation cannot arbitrarily or capriciously refuse to make the transfer.

It is also alleged that the defendant Laemmle is president of the corporation, controls its management and claims to own the same stock by virtue of an assignment from Horsley. The fact that this claim is made does not justify the corporation in refusing to make the transfer to plaintiff, or justify the plaintiff in making Laemmle a party defendant. *(Brown*v. *Arbogast & Bastian Co.,*162 App. Div. 603.) It may be that the corporation, before making the transfer, would have the right to implead Laemmle for the purpose of having the court determine to which party the transfer should be made, but that question is not now before us. All that is necessary here to determine is that the facts set out in the complaint state a good cause of action against the corporation to compel it to transfer to the plaintiff the stock *810mentioned, and that a cause of action is not stated against Laemmle.

It follows, therefore, that so much of the order appealed from as denied plaintiff’s motion for judgment against the Universal Film Manufacturing Company is reversed, with ten dollars costs and disbursements, and the motion to that extent granted, with ten dollars costs, with leave to the defendant corporation to withdraw the demurrer and to answer on the terms hereinafter stated; that the order appealed from granting Laemmle’s motion for judgment against the plaintiff is affirmed, with ten dollars costs and disbursements, with leave to the plaintiff to serve an amended complaint on payment of such costs; and that the order appealed from granting the Universal Film Manufacturing Company’s motion for judgment against the plaintiff is reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs, with leave to the corporation to withdraw its demurrer and answer, on payment of such costs.

Ingraham, P. J., Laughlin, Clarke and Scott, JJ., concurred.

So much of order as denied motion for judgment against defendant corporation reversed, with ten dollars costs and disbursements, and motion to that extent granted, with ten dollars costs, with leave to said defendant to withdraw demurrer and to answer on the terms hereinafter stated. Order denying defendant Laemmle’s motion for judgment against plaintiff affirmed, with ten dollars costs and disbursements, with leave to plaintiff to serve amended complaint on payment of such costs. Order granting motion of defendant corporation against plaintiff reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, with leave to said defendant to withdraw demurrer and to answer on payment of such costs. Orders to be settled on notice.