Hartt a. Harvey.

and the injunction will be dissolved. If the defendants do not elect to pay, and pay the said sum within 20 days, then an attachment will issue returnable at some term of this court in the first district, with an order indorsed thereon holding the said George M. Chapman to bail in the sum of $1,000, and the motion for the dissolution of the injunction will abide the order of the court upon the return and disposal of the attachment. The costs upon the other motion will abide the event of the action.

HARTT a. HARVEY.

Supreme Court, First District; Special Term, August, 1861. DAMAGES FOR WITHHOLDING CERTIFICATE OF ELECTION.-TITLE TO OFFICE HOW TO BE TRIED.

Where the complaint claimed compensation, in damages, for alleged wrongful withholding of the certificate of election of the plaintiffs, as trustees of a religious corporation, and keeping the defendants out of office; and also, that the certificate of the defendants, who claimed the office, be declared null and void; -Held, that the complaint must be dismissed. The question of title should be tried by an action or proceeding in the nature of quo warranto.

Motion to dismiss complaint.

This action came on for trial before the court at special term. At the trial, the defendants moved to dismiss the complaint. The substance of the complaint is set forth in the opinion of Mr. Justice Mullin, on the motion to continue an injunction granted at the commencement of the action. (10 Ante, 321.)

Edward Gilbert and William Curtis Noyes, for the plaintiffs. Elisha W. Chester, for the defendants White and Smith.

Elial F. Hall, for the defendants Harvey and Tompkins.-I. The issue of title to the office, raised by the pleadings, if material, can be tried only by a court of law, with a jury, and a court

Hartt a. Harvey.

of equity will not assume jurisdiction, provisionally, to enjoin either of the contesting claimants, pending the litigation at law. (See Opinion of MULLIN, J., 10 Abbotts' Pr., 321. See, further, Tappan a. Gray, 9 Paige, 507; 7 Hill, 259; Deklyn a. Davis, Hopk., 135; People a. Draper, 4 Abbotts' Pr., 333.)

II. If, according to the view of the plaintiffs' counsel, this be an action for damages for fraud,-for a malicious conspiracy to defraud the plaintiffs of their right," the injunction being in aid of the right," then it is sufficient to say, that there is no allegation of fraud against Harvey and Tompkins-the defendants sought to be enjoined. Nothing is said in the complaint about any connivance or collusion on their part with, or acquiescence in, or knowledge of, the fraud with which the other defendants are charged. As to them, therefore, the action must fall to the ground. (Jenkins a. Waldron, 11 Johns., 114.)

III. It is extremely doubtful whether a private action like this, for damages, can be sustained at all. Be this as it may, in none of the cases cited as analogous, was any equitable relief afforded. These are (besides Jenkins a. Waldron, cited in foregoing point) Wheeler a. Patterson (1 N. H., 88); Lincoln a. Hapgood (11 Mass., 350); Weckerley a. Geyer (11 Serg. & Raw., 35). 1. It is not. pretended that there are any emoluments connected with the office, nor is any special damage averred. 2. The office of trustee does not clothe the incumbent with any new franchise. The franchises of the corporation belong not to the trustees exclusively, but to the entire body of corporators. In this respect they are no better off than public officers. (Robertson a. Bullions, 1 Kern., 243.) 3. The society itself may cut off the trustees from their office before the expiration of their term, by reducing their number, and they will have no legal remedy. (Statute of 1813, § 9; 2 Rev. Stat., 609, Banks' ed.) 4. Such a trustee then, has no right of property in his of fice. It is a mere naked power, unconnected with any interest, apart from that of every corporator, and cannot be the subject of a private action for damages. (Opinion of DENIO, J., in People a. Fulton, 1 Kern., 94.)

IV. The natural, obvious mode of redress for the plaintiffs, was to proceed at law by mandamus or quo warranto. The former they have done, and by it have obtained a part of the relief sought for in this action. (See 11 Abbotts' Pr., 179.)

Roeder a. Ormsby.

SUTHERLAND, J.-It is true that the complaint in this case asks for compensation in damages for the alleged wrongful withholding of the certificate, and keeping the plaintiffs out of office; and, also, that the certificate of the defendants be declared null and void; but it is perfectly plain that the main relief asked for in the complaint, is the judgment or determination of the court, that the defendants were not regularly elected, and are not entitled to the office, and that the plaintiffs were regularly elected, and are entitled to the office.

If the plaintiffs were not regularly elected, and are not entitled to the office, then the certificate has not been wrongfully withheld from them, and they are not entitled to any compensation in damages, or to have the certificate of the defendants declared null and void.

There can be no damages given to the plaintiffs, nor can the defendants' certificate be declared null and void, without first determining the title to the office.

The damages and equitable relief asked for in the complaint, are asked for as mere incidents of the main relief asked for,to wit, the judgment of the court on the question of the right and title to the office.

It follows that the complaint should be dismissed, for it is clear that this court has not jurisdiction to try this question of title in this action. It should be tried by an action or proceeding in the nature of quo warranto.

Judge Mullin's opinion in Hartt a. Harvey (10 Abbotts' Pr., 321), is, in my opinion, conclusive on this point.

ROEDER a. ORMSBY.

Supreme Court, First District; Special Term, September, 1861.

PLEADING.-DEMURRER.

A pleading cannot be demurred to on the ground of redundancy, nor indefiniteness, nor because it demands greater relief than the facts stated therein will justify.

Roeder a. Ormsby.

A complaint by a father, showing that the negligence of the defendants' servant caused the death of the plaintiff's infant child, and "that the plaintiff was and will be compelled to pay $100 for medical attendance, funeral and other expenses, caused by the death of his son," is sufficient on demurrer under subdi, vision 6 of section 144 of the Code. Though no expenses can be recovered except such as are necessary and reasonable, they need not be so described in the complaint.

Demurrer to complaint, on the ground that it did not state facts sufficient to constitute a cause of action.

The facts are sufficiently stated in the opinion.

John Flanagan, for the defendants.-I. So far as the complaint is founded upon the death of the deceased, the plaintiff has no right to sue. The administrator is the proper plaintiff. (Laws of 1847, ch. 450; Laws of 1849, ch. 256.)

II. The other branch of the complaint does not show that any expense has actually been incurred, or if any, for what purposes. It is not enough to state that he was compelled to pay. (Packard a. Hill, 7 Cow., 434, 442.)

W. J. A. Fuller, for the plaintiff.-I. This complaint contains two causes of action : 1, for the death of the child; and 2, for the expenses thereby incurred by the father. We admit that the first appertains to the administrator only.

It

II. But the demurrer is general to the whole complaint. should have specified other grounds, and singled out the defective claim. (Wilson a. Mayor, &c., 15 How. Pr., 500; Butler a. Wood, 10 Ib., 222; Hillman a. Hillman, 14 Ib., 456; Eldridge a. Bell, 12 Пb., 547.)

III. The second claim is good. (Wosley a. C. H. & D. R. R., 1 Handy, Ohio, 481.) If not stated with precision, the remedy is not by demurrer. (Richards a. Edick, 17 Barb., 260.)

LEONARD, J.-The defendants have interposed a general de-murrer to the plaintiff's complaint.

The complaint alleges that the servants of the defendants, while driving their cart, negligently and carelessly run over the plaintiff's son, an infant under five years of age, who died from the injuries then received.

Roeder a. Ormsby.

"That the plaintiff was, and will be compelled to pay $100 for medical attendance, funeral and other expenses, caused by the death of his son."

"That he was also deprived of the comfort, society, fellowship, assistance, and services of his son, to his loss and damage $5,000," and demands judgment for $5,100, and costs.

The plaintiff's counsel, on the argument, conceded that he could not recover for the loss of the comfort, society, fellowship, assistance, or services of his son. This admission, frankly made, supersedes the necessity for considering that portion of the complaint.

The defendants' counsel, with equal frankness, admits the plaintiff's right to recover for necessary expenses actually incurred for medical attendance, and for reasonable funeral charges, required by the injuries complained of, or by the death of the plaintiff's son, but insists that the averments of the complaint are defective in these respects.

The language is somewhat inartificial, but it indicates sufficiently what are the expenses for which the plaintiff claims to recover. If a party will be compelled to pay the expenses referred to, I think we may say they have been incurred. The plaintiff can recover only for such expenses as are necessary and reasonable, but the omission of these words will not in this case vitiate the complaint. Some amount must inevitably have been incurred for the funeral charges. The "other expenses" mentioned can be ascertained by a bill of particulars if the defendants require it; or the plaintiff may be required to make his complaint more definite and certain.

The demurrer is general to the whole complaint, alleging only that it does not state a cause of action.

I think a good cause of action has been stated in respect to these expenses.

A claim for injuries or damage for which no recovery in this action can be had, will not render the whole complaint vicious, if there is any damage mentioned which legitimately flows from the act complained of. The allegation or claim for damages by reason of the death of the child must be considered as surplusage or irrelevant matter. It is not a separate or distinct count. It might be stricken out on motion.

There being sufficient facts stated to constitute a cause of ac