Opinion of the Court, per RUGER, Ch. J. § 1540.) The validity of the certificates of sales for taxes could not be tried in this action. (Knap v. Hungerford, 7 Hun, 588; Van Schuyver v. Melford, 59 N. Y. 426; Albany City Savgs. Instn. v. Burdick, 87 id. 40.) RUGER, Ch. J. The question attempted to be raised by the respondents in this proceeding was, whether, upon the facts stated in the complaint, they were properly made parties defendant in the action. The objection went to the entire cause of action, as stated against them, and the necessary effect of a decision in their favor was to leave them in as parties to the action, but with nothing in the pleadings to indicate their connection with the subject-matter, except the allegations in the answer of their co-defendants George M. Nichols and Mary Jane, his wife, alleging the invalidity of their liens. It may well be doubted, even if the order appealed from should be allowed to stand, whether the respondents have secured any exemption from their responsibility as defendants in the action. It is quite clear that under section 1543 of the Code of Civil Procedure, they would still be obliged to litigate with their co-defendants, the Nichols, the validity of their liens upon the premises sought to be partitioned, notwithstanding the allegations in the complaint relating to their interest in the premises had been struck out by order of the court. But it is quite evident that the question as to whether a person has been properly made a party defendant in an action cannot be raised upon a motion to strike out the allegations in the complaint referring to his interest in such action. The Code authorizes the party aggrieved thereby to move to strike out irrelevant, redundant or scandalous matter contained in a pleading, but it is a new application of the privileges conferred by this provision to strike out a pleading because it does not state a good cause of action against the moving party. Questions as to the sufficiency of a pleading in stating a cause of action or defense against a party, or as to his liability Statement of case. upon a given state of facts, can properly be raised only by a demurrer to such pleading. When the pleading contains the semblance of a cause of action or defense its sufficiency cannot be determined upon a motion to strike it out as irrelevant or redundant. (Walter v. Fowler, 85 N. Y. 621.) It cannot be claimed that the portions of the complaint which were struck out by the order appealed from were either scandalous or redundant; and it follows that if they are struck out at all it must be upon the ground that they are irrelevant. It would be confounding the remedies provided by the several sections of the Code, to hold that the motion to strike out matter from a pleading was applicable to a case where there was an absence of allegations of fact sufficient to constitute a cause of action or defense. The power given to a court to expunge matter from a pleading, upon motion, for irrelevancy, refers to such matter as is irrelevant to the cause of action or defense attempted to be stated in the pleading against the party moving to expunge, and does not enable a party to strike out allegations relating to himself because they are irrelevant to an alleged cause of action against some other party. We are, therefore, of the opinion that this appeal does not bring up the question attempted to be raised, and which was argued before us, and that we cannot properly pass upon that point. The orders of the General and Special Terms must, therefore, be reversed, with costs in both courts to the appellants. All concur. Orders reversed. In the Matter of the ATTORNEY-GENERAL V. THE CONTINENTAL It is within the discretion of the court to grant or refuse the application of 94 199 114 622 Statement of case. for an order requiring the receiver to complete the sale. The contract, while executory, is subject to the supervisory power of the court, The purchaser by making the application submits himself to its jurisdiction. and if in its judgment the contract is inequitable, it may deny the motion. Where, therefore, on such a motion it appeared that the petitioner bid off certain shares of bank stock of the par value of $27,000 for the sum of $107; that it was known to the purchaser, but not to the receiver at the time of the sale, that in an action brought by certain stockholders of the bank, in behalf of themselves and the other stockholders, against its directors, it had been adjudged that, because of misconduct, the directors were liable to the stockholders for the market value of the stock, at a time specified, and also for an assesssment of one hundred per cent, which had been paid by the stockholders, held, that the court properly refused to grant the motion; that although there was no technical legal duty resting upon the purchaser to disclose his knowledge, and even if the receiver was chargeable with negligence, the court was not bound to direct a completion of the sale. (Argued November 20, 1883; decided December 4, 1883.) APPEAL by Edward C. Hancy from order of the General Term of the Supreme Court, in the third judicial department, made July 2, 1883, which affirmed an order of Special Term denying a motion on the part of said Hancy to compel the receiver of the Continental Life Insurance Company, appointed in the proceeding above entitled, to execute to him, said IIancy, an assignment of thirty-six shares of the stock of the Atlantic National Bank, which had been bid off by him at a sale of the assets of the insolvent company by said receiver. The material facts are stated in the opinion. Geo. C. Holt for appellant. The right of action against the directors of the bank was an incident of the ownership of the stock, and passed with it upon its sale. (Morawitz on Corporations, 320; Grissell v. Bristowe, L. R., 3 C. P. 112; Boardman v. L. S., etc., Co., 84 N. Y. 178, 179; Johnson v. Underhill, 52 id. 212; Hyatt v. Allen, 56 id. 553; Manning v. Quicksilver Co., 24 Hun, 360; Jermain v. L. S. Co., 91 N. Y. 483.) The right of a stockholder to recover damages from the directors of a corporation, caused by their negligence Statement of case. or misconduct, is analogous to a right to a dividend. (Brinckerhoff v. Bostwick, 88 N. Y. 52; Graves v. Gouge, 69 id. 154; Robinson v. Smith, 3 Paige, 222; Nelson v. Burrows, 9 Abb. N. C. 280; Hand v. Burrows, id., note; Scott v. De Peyster, 1 Edw. Ch. 513; Allen v. N. J. Co., 49 How. Pr. 14; Cunningham v. Pell, 5 Paige, 607; Smith v. Rathbone, 66 Barb. 402; McNeil v. Tenth Nat. B'k, 46 N. Y. 325.) The incident passes by the grant of the principal. (Jackson v. Blodgett, 5 Cow. 252; Langdon v. Buell, 9 Wend. 80; Rose v. Baker, 13 Barb. 230; Patterson v. Iall, 9 Cow. 747; Bowdoin v. Coleman, 6 Duer, 82; Congress, etc., Co. v. High Rock Co., 45 N. Y. 291; Oneida B'k v. Ontario B`k, 21 id. 490; Tracy v. Talmadge, 14 id. 192; Gewig v. Sitterly, 56 id. 214; Bolen v. Crosby, 49 id. 183; Pier v. George, 86 id. 183; Spears v. Mayor, 89 id. 369; Kloch v. Buel, 56 Barb. 398; Parmelee v. Dunn, 23 id. 461; Allen v. Brown, 44 N. Y. 228; Merritt v. Bartholick, 36 id. 44; Wanser v. Cary, 76 id. 526; McMahm v. Allen, 35 id. 403; Hicks v. Cleveland, 48 id. 2.) The sale of the stock carried with it the right of action against the directors under the general rule that a contract should be so construed as to give some effect to it rather than to render it meaningless and inefficacious. (Sherman v. Elder, 24 N. Y. 381; Fitch v. Rathbun, 61 id. 581; Waldron v. Willard, 17 id. 466.) The receiver was vested absolutely with the assets of the corporation. (Att'y-Gen. v. Guardian Mut. L. Ins. Co., 77 N. Y. 272; Verplanck v. Mercantile Ins. Co., 2 Paige, 438; Bolen v. Crosby, 49 N. Y. 183; Pier v. George, 86 id. 183; Am. Ins. Co. v. Oakley, 9 Paige, 259; Billington v. Forbes, 10 id. 487; Williamson v. Dale, 3 Johns. Ch. 290. The sale Edward II. Hobbs for receiver, respondent. made at auction by the receiver should not be confirmed, for the reason that there was no mutual understanding between the parties as to what the one intended to sell and the other intended to purchase. (Kerr on Fraud and Mistake, 396, 406, 408; Champlar v. Laytin, 18 Wend. 407; Coon v. Smith, 29 N. Y. 392; Smith v. Mackin, 4 Lans. 41; Otter v. BreSICKELS VOL. XLIX. 26 Opinion of the Court, per ANDREWS, J. voort Petroleum Co., 50 Barb. 247.) The petitioner could only take by the purchase at auction that which was offered, and he had no right to demand an instrument of transfer more ample than the terms of the sale at auction. (Waldron v. Willard, 17 N. Y. 466; Harper v. Raymond, 3 Bosw. 29; Deming v. Bailey, 2 Robt. 1.) Leslie W. Russell, Attorney-General, in person, respondent. A mistake as to the thing sold prevents the mutual assent necessary to constitute a contract. (Thornton v. Kempstead, 5 Taunt. 786.) A concurrence of the minds of the parties as to the subject is essential. (Trovor v. Wood, 36 N. Y. 307.) A party is estopped from denying that the manifest intention displayed by him was his real intention. (Benjamin on Sales, 39.) ANDREWS, J. The refusals of the receiver to transfer to the appellant the thirty-six shares of the stock of the Atlantic National Bank, held by the Continental Life Insurance Company, purchased by him at the receiver's sale, unless the purchaser would consent to the reservation of any claim which the company or the receiver, as stockholders, had against the officers of the bank, or other persons, imposed upon the purchaser the necessity of resorting to the court for relief. The plaintiff, by making his motion for a direction to the receiver, stands in the position of asking the court to approve the sale, and it was competent for the court to grant or deny the motion, as should appear to be just upon a consideration of all the circum stances. The facts presented upon the motion show that the receiver in making the sale acted in ignorance of a material fact known to the purchaser affecting the value of the stock. This fact was, that certain directors of the Atlantic Bank in an action. brought by certain stockholders of the bank in behalf of themselves and the other stockholders, had been adjudged, by reason of their misconduct as such directors to be liable to the stockholders for the market value of the stock April 23, 1873, |