requiring the particular defect relied upon to be specifically pointed out upon a demurrer for improper joinder of causes of action.

While it is the general rule that before a stockholder can institute an action which the corporation itself is capable of beginning, but fails to begin, a demand must be made upon the corporation or its officers to institute the action and such demand must be refused; yet, when it appears that the corporation is under the control of the persons against whom the suit must be brought to secure the proper relief, a demand that such action be instituted is not required.

This action was brought by plaintiff as a stockholder of the N. Y. Concert Co. against the officers of said company and others for fraudulently conspiring to defraud the corporation, and judgment was demanded for an accounting of the management of the corporation by the officers thereof, an injunction restraining them from doing certain acts, and other relief.

Defendant Wolf demurred to the complaint upon the ground that there was a defect of parties defendant, in that it appeared upon the face thereof that there were nine directors of the corporation of whom three were not joined as defendants, that there were three inspectors of election of a certain election alleged to be fraudulent, while but two were made defendants and that the holders of certain notes made by the president of the company were not made parties.

A second ground of demurrer was that causes of action were improperly joined in the complaint because the causes of action set forth therein, except one, did not severally affect the demurring defend

ant; because it appeared upon the face thereof that the said causes of action did not belong to any one of the subdivisions of $ 484, Code Civ. Pro., but belonged to different subdivisions thereof; because causes of action upon claims not arising out of the same transaction or transactions connected with the same subject of action were included in the complaint; and because legal and equitable actions not referring to the same persons or subject matter were united in said complaint.

Defendant further demurred upon the ground that the complaint did not state facts sufficient to constitute a cause of action. The argument put forward in support of this last ground of demurrer was that the complaint contained no allegation of any demand upon, or refusal by, the corporation to institute the action.

Demurrer was overruled at Special Term and from the judgment overruling it defendant appealed.

Franklin Bien, for applt.
A. J. Dittenhoefer, for respts.

Held, That it did not appear upon the face of the complaint that there was a third inspector of election, nor did it appear therein who were the owners and transferees of the notes mentioned in the first cause of demurrer. That while that part of said demurrer addressed alone to the defect of parties defendant in respect to the non-joinder of the directors of defendant corporation was, perhaps, good, yet the demurrer must, as a whole, fail because that portion of it could not be sustained unless

the whole of it were properly taken, otherwise the court would have to sustain one ground of the demurrer in part, and overrule it in part, which is clearly not contemplated by the provisions of the Code Civ. Pro.

That, moreover, it did not appear that the demurring defendant had any interest in having the persons for whose absence as defendants he had interposed the demurrer brought into the case, and in order to sustain a demurrer for a defect of parties it must appear that the party demurring has an interest in having the omitted parties joined, or that he is prejudiced by the non-joinder. 29 Barb., 602; 7 Hun, 458; 6 id., 290; 63 N. Y., 489.

That the second ground of demurrer failed to conform to the provisions of the Code requiring that a demurrer upon the ground of misjoinder of causes of action should specifically point out the particular defect relied upon. That it failed to specify the causes of action which did not affect defendant, that it did not specify those which did not belong to the same subdivision of § 484 of the Code, nor those which did not arise out of the same transaction, nor the legal and equitable ones not referring to the same persons or subject matter. That the last ground of demurrer was not well taken. That while it is the general rule that, before a stockholder can institute an action which the corporation itself is capable of beginning, but fails to begin, a demand to institute such action must be made up

on and refused by the corporation or its officers, 69 N. Y., 154; nevertheless, where it is shown by proper allegations that the corporation is under the control of those who must be defendants in the suit by which alone the proper relief can be had, a demand that such action be brought is not required. That where a fraudulent breach of trust is shown, and it is apparent upon the face of the complaint that the corporation cannot move, even for the protection of the stockholders, then a stockholder may be permitted, without a demand, to seek in his own behalf and that of others similarly situated, to undo the fraudulent and unlawful acts of those who have prevented the uses and purposes of the corporation, and who have despoiled the stockholders of their property. 10 Abb. N. C., 406; 8 Blatch., 347; 12 Fed. Rep., 752. Judgment affirmed.

Opinion by Macomber, J.; Brady and Daniels, JJ., concur.

fendant to testatrix, who was defendant's sister and plaintiff's mother. Plaintiff testified in his own behalf that said notes were, for some time prior to his mother's death, kept in a trunk in the room occupied by her, and that he saw them there on the morning before she died, and that on the following morning he found the notes had been abstracted. He also testified to facts showing defendant's presence in the room where the notes were kept during the last hours of his mother's illness, and the opportunity afforded defendant to take the notes. Another witness testified that the notes were afterward found in defendant's possession, and that he refused to surrender them. Defendant testified in his own behalf that he did not take the notes from the trunk; that they came into his possession a week before the death of deceased; his sister, C., was present at the time; she called him into the room where deceased was lying sick. He was then asked to state what occurred in reference to any transaction between himself and deceased concerning the notes after he went into the room, and the question was ruled out as improper under § 829 of the Code. Defendant also testified that the notes remained in his possession from a week before the death of deceased until her death. The trial judge charged the jury that defendant, in order to hold the notes by virtue of a gift, must establish it beyond a suspicion.

D. Morris, for applt.

C. S. Baker, for respt.

OLEOMARGARINE.

N. Y. COURT OF APPEALS. The People, respts., v. Arensberg, applt.

Decided Oct. 29, 1886.

The commission of an offense under Chap. 183, Laws of 1885, is not proved by showing the simple manufacture and sale of the article; but it must appear that it was manufactured in imitation or semblance of butter; that by the use of ingredients not necessary to the article itself it was sought to accomplish such imitation or resemblance.

So far as the act forbids the manufacture of an article to take the place of butter it is unconstitutional. Reversing S. C., 23 W. Dig., 481.

Defendant was indicted and convicted of selling oleomargarine in

the city of Brooklyn in violation of § 7 of Chap. 183 of the Laws of 1885, as amended by Chap. 458 of the same year, which prohibits the manufacture or sale "out of any animal fat, or any animal or vegetable oils not produced from unadulterated milk or cream from the same, any article or product in imitation or semblance of, or designed to take the place of butter."

F. R. Coudert and W. H. Peckham, for applt.

Edward B. Thomas and P. Quinn, for respts.

Held, That defendant's guilt did not nor could not lie in the simple manufacture and sale of the article, and depended upon the further inquiry whether it was manufactured in imitation or semblance of butter; whether by the use of ingredients not necessary to the article itself it was sought to accomplish such imitation or resemblance; that the manufacture of an article designed to take the place of butter would not be an offense, and the provision forbidding such manufacture is unconstitutional. 99 N. Y., 377.

The court charged that "if you believe that the defendant did sell this article called oleomargarine, and that it was not a production of pure, unadulterated milk, or cream of the same, then he committed an offense under the law. The simple question for you to decide is, did this defendant or did he not sell an article known as oleomargarine, and was that article made of pure, unadulterated milk and cream. If he did so sell

that article and if it was not so made, he is guilty of a violation of this statute.

Held, Error.

Judgment of General Term, affirming judgment of conviction, reversed, and new trial ordered.

Opinion by Finch, J. All concur, except Earl and Andrews, JJ., dissenting, and Miller, J., not voting.

EXCISE.

N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT.

The People ex rel. Chas. H. Kimball v. Nicholas Haughton et al., Commissioners of Excise of the city of N. Y.

Decided Oct. 15, 1886.

The objection to the power of the excise commissioners of the city of N. Y. to revoke a license founded upon the ground that the summons to appear before the commissioners was not served upon the licensee himself, but upon the person who, in his absence, was found in the possession and control of his establisment, is obviated by the appearance of the licensee by attorney upon the return of the summons and moving for, and obtaining an adjournment of the proceedings without raising the objection of the improper service.

When all of the excise commissioners of the city of N. Y., have notice of the time and place to which a proceeding to revoke a license granted by them has been adjourned by participating in the making of the order for the adjournment, it is no objection to the order revoking said license made at the adjourned hearing that it was made by two of the said commissioners in the absence of the third. The statute does not require the same strictness by way of proof to support an order revoking a license made by the excise commissioners of the city of N. Y., in a proceeding before them for that purpose,

as is required in an action or special proceeding in court. Such a proceeding before the commissioners is designed to be summary, and all that has been required is that the commissioners should become satisfied of the existence of the fact necessary to warrant a revocation of the license by such reliable information as they may be able to obtain establishing it to a reasonable certainty.

Certiorari to review the order and decision of the commissioners of excise of the city of N. Y. vacating and annulling a license issued to the relator.

It was claimed that the order was improper for the reason, first, that the summons to appear before the commissioners to show cause why the license should not be revoked had not been served upon the relator personally, but only upon the person in charge of his establishment in his absence; second, that the order was made by two commissioners in the absence of the other; and, third, that there was no legal evidence before the commissioners of any offense committed by the relator for which his license should have been revoked.

It appeared that the relator appeared by attorney before the commissioners upon the return of the summons and asked for and obtained an adjournment of the proceedings without raising the objection of improper service, and that all the commissioners were present at that time and participated in making the order of adjournment.

John O'Byrne, for relator. Elliot Sandford, for respts. Held, That the objection taken to the proceeding on account of the

improper service of the summons was obviated by the course pursued by the relator upon the return thereof. That if it had been intended to resist the proceeding on account of this irregular service, the objection should have been taken before the commissioners, when it might have been obviated by issuing another summons and securing the service of it personally upon the relator.

That the objection that the order and decision were made by two of the three commissioners was also

without force, for it appeared that

the third had notice of the time and place to which the hearing was adjourned by having participated in the making of the order for the adjournment, and when that is the fact, under the statute defining the powers and course of proceedings of such officers, the action and determination of a majority will be effectual for all the purposes of the case.

That the statute does not require the same strictness by way of proof in a proceeding to annul a license for the sale of intoxicating liquors as is required in an action. or special proceeding in court. That all that has been required is that the commissioners shall become satisfied that the licensee has violated any of the provisions of the act, Chap. 549, Laws of 1873, § 4, and no legal mode has been prescribed through which the commissioners may become satisfied as to that fact. That the proceeding is designed to be summary and to depend upon such reliable information as the commissioners