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IX. [Where stay is desired state (if not already stated) condition of cause, and add affidavit of merits as in Form No. 52, at page 170.]
X. [If sanction for less than five or more than twenty days' serrice before the date of examination is desired, state special circumstances making such time of service necessary. [Jurat.]
[Signature.] FORM No. 428. Another form, to enable plaintiff to frame complaint and name correctly
unknown defendants, in action to prevent perversion of trust funds, and to set aside corporate election.13 [As in last Form, substituting for paragraphs IV and VI as follow's:]
IV. That the W. M. L. I. Co. is, and has been for many years, a corporation created under the laws of this State, authorizing the creation of life insurance companies. That deponent, on the
of , 19 , took from said company its policy of insurance for the sum of dollars [stating, shortly, terms of policy], which policy was issued in consideration of dollars, then paid said company by defendant.
That said company is required by law and by said contracts to keep invested in securities directed by the statute a certain sum called the reserve on said policies [specifying nature of reserve fund.].
That the plaintiff is ignorant of the amount of this reserve fund [here followed allegations of due investment of lawful reserre].
That the N. J. M. L. I. Co. is a corporation created under the laws of the State of New Jersey for the insurance of lives. That said last-named company and divers of its officers and directors, to deponent unknown, hare conspired with divers of the officers and directors of said defendant W. M. L. I. Co., to obtain 'possession of the assets of said last-named company, and so obtain the reserve fund held in trust by said W. Co. for its policy-holders. That in pursuance of such conspiracy the president and secretary and several of the trustees of said W. Co. have resigned their offices, and the defendant D. J. N., and the defendant F. J. M., have been elected president and secretary in their places, persons connected with said N. J. Co.; that deponent does not know the names of
13 Sustained by Glenney v. Stedwell, 1 Abb. N. C. 327, 64 N. Y. 120.
the trustees who have resigned or those elected in their place, but deponent is informed that such change was made by means of the purchase of the stock of said W. Co. by said N. J. Co., or some person acting on its behalf, for the fraudulent purpose of facilitating the transfer of said reserve fund and assets of said W. Co. to said N. J. Co., so that the latter-named company can withdraw the same from this State, and deprive the policy-holders in the W. Co. of all interest therein, to their great damage and the damage of the plaintiff. That the defendant J. H. S. is president of said X. J. Co., and knows all the facts respecting said transactions [here followed allegations of receipt of circulars a:vising transfer of policies, which deponent declines to do].
That deponent is not able to frame his complaint, and does not know the names of the necessary defendants, and that it is necessary for him, in order to obtain knowledge of said names, and of the facts necessary to frame his complaint, that he should have an order to examine the defendants [names], so that he can obtain from them the information necessary for the purpose aforesaid.
VI. That deponent has commenced this action in this court, as well on his own behalf as on that of all other policy-holders similarly situated with him, against said [names), for the purpose of setting aside the election of said N. and M., and for the purpose of restraining all officers of the W. Co. from parting with any of the reserve fund of said company, and to restrain said N. J. Co. and its agents from receiving any of said fund, or interfering therewith in any way, and for other relief.
FORM No. 429.
Another form, to bring in new co-defendants and to frame complaint, in
action to set aside expulsion from stock exchange.14 [As in last Form but one, substituting for paragraphs IV and TI as follows:]
IV. This action is brought by plaintiff against the New York Stock Exchange, an unincorporated association, sued by its president, upon a cause of action against all of the members of said Exchange, under $ 1919 of the Code of Civil Procedure, to obtain a judgment that a resolution passed at a meeting of the gorerning committee of the said New York Stock Exchange is illegal and void, and to restrain the said Stock Exchange from enforcing the same or from depriving the plaintiff of his seat in the
14 Sustained by Hutchinson v. Lawrence, 29 Hun, 450.
said Exchange, which they claim to do, which seat is of the value of not less than dollars, and from interfering with his rights of transacting business in the said Exchange, and also for the purpose of restraining, by injunction and final decree, those meinbers of the said governing committee, who voted for the said resolution, from interfering with the plaintiff's rights as a member of the said Stock Exchange, and to obtain damages against them for such wrongful proceeding against him.
VI. That the plaintiff intends to make other persons parties defendant to said action as soon as their names are ascertained [here followed allegations of receipt by plaintiff, from the secretary of the Exchange, of notice to appear and answer charges accompanying the notice, that the constitution of the Exchange provides that a vote of two-thirds of the governing committee present may expel any member of the Exchange upon conviction of obvious fraud; the appearance of plaintiff before the commitlee, and denial of charges, and claim to have opportunity to refute them; the passage, at a subsequent meeting, of resolution of explusion, ond denial of further knowledge of proceedings at the alleged trial. It was also alleged on information and belief, that witnesses were examined without notice or opportunity for plaintiff to refute them; that the members voting for expulsion did not constitute two-thirds of said governing committee; that the defendant L. was present throughout the alleged trial; and all these matters are peculiarly within his knowledge, but deponent was ignorant of them; and continued thus:]
In order to enable plaintiff to frame his complaint, it is necessary and material for him to take the testimony of the said defendant L. upon the matters aforesaid, in respect to all the occurrences of said alleged trial, and as to the records and minutes thereof, recorded by said governing committee, and especially to inform himself of evidence taken by said governing committee other than deponent's own statement before them, what witnesses were examined, what reports or other communications, if any, were received, and what members of said committee were present at the said alleged trial when the said vote of expulsion was taken, respectirely; which and how many of said members voted in favor of the said resolution, and what, if any, other votes or resolutions were passed upon said alleged trial. That the charges so preferred against plaintiff were in number, containing separate specifications. That, as plaintiff is informed and believes, upon certain of said charges the members of said committee present, or a majority thereof, voted that they were sus
tained, but upon others they voted that they were not sustained; but plaintiff is ignorant which of said charges were so claimed to be sustained, and upon which the resolution of his expulsion is said to have been based, and it is material and necessary for him, in order to frame his complaint herein, by the examination of said defendant L., to ascertain which of the said charges were so claimed to have been sustained and which not.
That before commencing this action, plaintiff applied to said governing committee for information in respect to the matters aforesaid, for a copy of the proceedings upon the said alleged trial, and for all evidence that was taken against him and in his absence, but that the same was refused [here followed allegations that the governing committee accepted the charges as proof and prejudged the case, and decided without reference to the testimony; and that a motion had been made to recall plaintiff and inform him of and give him opportunity to answer evidence, but the same was overruled.]
That plaintiff intends to make all the said members of said governing committee, who voted for his expulsion as aforesaid, parties to this action, and demands judgment against them for damages.
VII. That deponent is advised by his counsel, and verily believes, that he has a good cause of action for damages against all the said members of said governing committe who voted for his expulsion as aforesaid, and desires and intends to make all of said persons parties to this action, and to demand judgment against them for damages as soon as he can discover their names.
VIII. That the facts as to all of the matters aforesaid are peculiarly within the knowledge of the defendant L., and that the deposition and testimony of said defendant as to all of the matters aforesaid is material and necessary for deponent in the prosecution of said action.
IX. That the said denosition and testimony of the said defendant is material and necessary for deponent to enable him to frame his complaint herein, and that without the same he is not able to frame his complaint.
That deponent does not, as aforesaid, know the names of certain necessary parties defendant to this action, and that the deposition and testimony of the defendant L., as aforesaid, is material and necessary for deponent to enable him to ascertain the said names so that he may bring in said parties.
X. [As in Form 427, from paragraph VIII to the end.]
AMENDING SUMMONS; AND BRINGING IN UNKNOWN OR
[In this connection we shall consider merely the cases where a plaintiff, after commencing an action, seeks to bring in third persons as defendants in addition to those originally made defendants, as distinguished from the cases in which he seeks a mere substitution of a third person who has succeeded to the interest of an original defendant, and in distinction to tne cases where a defendant seeks to compel the bringing in of a third person (which will be considered in a later chapter), and cases where a third person asks leave to come in, which will also be considered later on.
The importance of the distinction is in this, that where plaintiff brings in a third person as an additional defendant, the jurisdiction depends upon the issue and service of a summons upon him in the same manner as in commencing an action, except that the summons is supplemental to the action already commenced, and of which it is a branch, while in the other classes of cases here referred to, the jurisdiction is sustainable by the power of the court to proceed without process against a third person who acquires an interest in the subject of litigation pending the action, or seeks to intervene on his own application. In neither of these cases is any process necessary unless there is in substance a new or supplemental complaint.
As will be seen below, an application to bring in a third person as an additional defendant may be coupled with an application for other changes of parties and for leave to amend, or to plead, by way of supplemental complaint, facts occurring after action brought.]
15 See Article V, AMENDMENTS, p. 20, of this volume, on the general power of the court to allow amendments.