#### GEORGE W. MILLER, Appellant, *v. JOHN P.*WHITE and others, Respondents.

*Complaint*— *defective as not stating cause of action*— *how cured, by answer.*

Where a complaint simply alleges an indebtedness to exist without stating the facts necessary to show such indebtedness, but an answer is put in, stating the. matter so omitted in the complaint, and the case has been tried, and, on appeal, a new trial ordered, the court will not, on such new trial, dismiss the complaint on the ground that it does not state a cause of action.

In such case, when the answer alleges that the indebtedness referred to in the complaint accrued for work an^d labor performed, and proceeds to disclose facts rendering the contract void as against public policy,- the complaint and answer sufficiently present the plaintiff’s case, and if the contract is not void as against public policy, or for some other valid reason, all that is required to justify a-recovery appears" by the pleadings.

Appeal from an order dismissing plaintiff’s complaint on the ground that the facts set forth in it did not constitute a cause of action.

The action was brought to charge the defendants as trustees of the Gutta Percha Manufacturing Company, a corporation created under the general law of this State,* for an indebtedness of that company, to the plaintiff, upon which a judgment was recovered against the company, in 1865, on the ground that the defendants had failed to file and publish in January, 1865, the report required by the statute.

The complaint set forth the recovery of a judgment against the *63company, that execution was returned unsatisfied, and that the said judgment was unpaid and .in full force.

*Robert*Sewell, for the appellant.

*H. Sheldon,*for the respondents.

*

 Chap. 40, Laws of 1847.

Daniels, J.:

The action was brought against the defendants, as trustees of the G-utta Percha Manufacturing Company, a corporation created under the laws of this State for the formation of corporations for manufacturing, mining, mechanical and chemical purposes. They were prosecuted under the provision of the statute rendering the trustees of those corporations liable personally for debts owing, for failing to make, publish and file their report.*

The complaint seems to have been sufficient in all respects, except that relating to the nature of the plaintiff’s demand. As to that, it was framed on the mistaken theory that the recovery of a judgment against the corporation was necessary, before an action could be maintained against the trustees. And for that reason the usual allegations describing the demand sued for, were probably omitted. Both parties appear to have been involved in the same mistake, as to the necessity of a preceding recovery against the corporation. And the defendant therefore fully answered the defective complaint, and in doing so described what the plaintiff had omitted to state : the consideration out of'which the demand was supposed to have arisen. Upon the issue so framed the action was tried and determined in favor of the plaintiff, and a new trial ordered on the reversal of the judgment by the Court of Appeals. After so much litigation in the case, there can be no reason for believing that the defendants can be misled as to the nature or description of the claim made against them. Their protection, therefore, does not require a dismissal of the complaint at the present stage of the proceeding.

The plaintiff averred that the company was indebted unto him, on the 1st of June, 1865; and then stated that he recovered a judgment against the company on the debt, on the 27th of June, 1866, for the sum of $24,734.62, which remained wholly unpaid. *64This, though not a direct, was an argumentative allegation that the plaintiff had such a demand against the company on the 1st of June, 1865. Standing by itself, the cause of action was not probably sufficiently stated to be good against a demurrer. But the defendants, by their answer, alleged that the judgment was founded upon a claim for work, labor and services, done and performed by the plaintiff in procuring contracts for supplies from the government of the United States, and then proceeded to disclose facts rendering the contracts void as against public policy. The averment that the pretended debt accrued for work and labor performed by the plaintiff, supplied the substantial defect existing in the complaint; and, together with the defenses presented against its recovery, created a substantial issue of fact for trial in the action.' The answer and the complaint together, sufficiently presented the plaintiff’s case to show what his cause of action was. And if the contract shall not be shown by the defendants to be void as against public policy, or for some other valid reason, all that will be required to justify a. recovery, appears by the pleadings. The defect in the complaint was cured by the answer. Both, taken together, showed that the plaintiff claimed to have a debt against the company for the amount mentioned, and the answer stated it to be for labor and services performed by him. These facts, with those showing the defendants to have been at the time trustees who failed to make the report required from them by the statute, constituted a cause of action against them. The order dismissing the complaint was wrong, and it should be reversed, with ten dollars costs besides disbursements.

Davis, P. J., and Brady, J., concurred for reversal for the reasons stated by Daniels, J., and also on' the ground that the practice adopted in moving to dismiss the complaint was altogether irregular.

Ordered accordingly.

*

 3 N. Y. Stats. at Large, 735, § 12.