Ramsey v. Erie Railway Co. object unitedly, or in the form, which the court of chancery permits, of a bill by one or more on behalf of themselves and all others having a common interest. This right exists under various circumstances. It clearly exists when the directors or agents, whose deeds or omissions are impeached, do themselves control the company, and impede the assertion of a right in its own name" (see, also, Butts v. Wood, 38 Barb., 181; S. C., affirmed, 37 N. Y., 317). The plaintiff brings this action on his own behalf, and on behalf of all others having a common interest; and he alleges that the officers named as defendants control the company. He may, as a stockholder, therefore, maintain the action for such portion of the relief demanded, as does not depend upon the statutory authority. In this view, the fact of the tender made by the company is unimportant; that depends for its efficacy, if any it has, upon the indebtedness of the company to the plaintiff. It is not claimed that it has any effect upon the plaintiff's right, as a stockholder, to maintain the action. It is evident, therefore, that the motion to dismiss the complaint, or perpetually to stay the proceedings in the action, on the second ground taken by the defendants, cannot prevail, even if it is true that the indebtedness shown does not make the plaintiff a creditor within the meaning of the statute; or that the tender alleged would be effectual against him as a creditor. The third ground of this motion is, that plaintiff's purchase of the bords and stock mentioned in the complaint was in violation of the statute prohibiting an attorney from purchasing a demand, with the intent of bringing a suit thereon (2 Rev. Stat., 288, § 71). The language of the statute is as follows: "No attorney, counselor, or solicitor shall directly or indirectly buy, or be in any manner interested in buying, any bond, bill, promissory note, bill of exchange, book debt or other thing in action, with the intent and for the Ramsey v. Erie Railway Co. purpose of bringing any suit thereon." Now, however the plaintiff, who is an attorney, may be prohibited, as creditor, from maintaining this suit, by reason of his violation of this statute-as stockholder, he is not affected by the statute-the purchase of stock is not within the prohibition. It is not one of the securities or evidences of debt mentioned, nor is it, within the meaning of this statute, a chose in action. A "chose in action," as defined by BURRILL, is "a thing which a man has not the actual possession of, but which he has a right to demand, by action, as a debt or demand due from another." See als Blackst. Com., 3SS, 396-7; Gillet. Fairchild (4 Denio, 82). The chose in action intended by the statute, is one on which a suit can be brought. This suit is not brought on the stock. That is not the cause of action; and although in some respects it may resemble a chose in action, it is not strictly such. The statute is a penal one, and cannot be extended to what is not expressly included in it. It is plain, I think, that the purchase of the stock was not a violation of the statute, and that the complaint cannot be dismissed upon this ground. Inasmuch as the last two grounds taken by defendants for the dismissal, if legally correct, do not, for the reasons above given, defeat the action, and warrant the relief sought by the motion, I have omitted to discuss them, as any opinion which I might here express in regard to them would be obiter, and therefore uncalled for and improper. No sufficient reason for dismissing the complaint, or perpetually staying the proceedings in the action has been shown, and that part of defendants' motion must be denied. The alternative part of the motion asks for a modification of the complaint, under section 160 of the Code. Defendants allege that portions of it are irrelevant and redundant, and these they ask to have stricken out; and as to the allegations of plaintiff's being a stockholder and creditor of the company, they seek to have Ramsey v. Erie Railway Co. the complaint made more definite and certain. In regard to this latter demand of the motion, I am inclined to think the plaintiff should be more specific in his complaint, as to the securities and evidences of debt which he holds against the company, as well as to the stock of the company of which he is the owner, to the extent of stating therein the precise nature and amount of the "past due claim for money" mentioned in the complaint, and whether such claim was ever presented to the E ie Railway Company for payment, and, if so, when; and by further stating the number of each class of bonds, and of shares of each kind of stock owned by the plaintiff, as alleged in the first paragraphs of the complaint; and when and by whom the said bonds were made, and when payable; what amount, if any, is now due thereon; whether such amount consists of principal or interest; and whether demand of payment · thereon has been made. The defendants have specified one hundred and thirteen separate portions of the complaint (by canceling the same upon the copy annexed to the notice of motion), which they allege to be irrelevant or redundant, and ask to have stricken out. I have carefully read the complaint, and considered the several portions objected to, and have come to the conclusions, that, as to the portions numbered by the defendants, Nos. 5, 8, 10, 11, 12, 13, 14, 15, 16, 17, 20, 28, 44, 50, 51, 53, 60, 61, 63, 6-1, 66, 67, 70, 72, 79, 80, 81, 83, 84, 85, 91, 102, 103, and 110, the motion to strike out should be granted, and as to all the other portions thereof, it should be denied. As the defendants have wholly failed upon the principal part of this motion, and have asked for more than they were entitled to upon the alternative part of it, they should pay the plaintiff ten dollars, costs thereof. The motion to set aside the order appointing a referee to take the deposition of Mr. Diven is a separate and distinct one. The order was made under the following provision of subdivision 7 of section 401 of the Ramsey v. Erie Railway Co. Code: "When any party intends to make or oppose a motion in any court of record, and it shall be necessary for him to have the affidavit of any person who shall have refused to make the same, such court mav, by order, appoint a referee to take the affidavit or deposition of such person." This motion to set aside the order is made exclusively on behalf of the defendants, and not of the witness sought to be examined under the order. It has been held at special term in this district, that the order is a matter exclusively between the party that obtains it and the person whose deposition is desired; and that such person only can move to have it vacated; that the party obtaining it should not be embarrassed by any motion of the adverse party to set it aside (Erie Railway Co. v. Champlain, 35 How. Pr., 73). This view is supported by the case of Brooks v. Schultz (5 Robt., 656) to the extent that the party against whom the affidavit is proposed to be real must show that he is injured by the irregularity complained of, before he can move to set aside the order for the examination of the witness. No such showing is here made by the defendants. The motion, therefore, must be denied, with ten ~ lars costs. Potter v. Pattengille. POTTER against PATTENGILLE. Supreme Court, Sixth District; Special Term, March, 1870. CONSOLIDATION OF ACTIONS. The consolidation of several actions should not be granted where the debts constituting the several causes of action have been guaranteed by different persons, so that the question of their liability would be embarrassed by joining the actions against the principal debtor, and allowing only one recovery and execution. Motion for consolidation. Three actions were brought by Caleb Potter against Daniel Pattengille, which the latter now moved to consolidate. The facts appear in the opinion. H. Ballard, for the motion. Card & Brooks, opposed. MURRAY, J.-This is a motion to consolidate these three actions between these parties, under section 36, title 6, chapter 6, part 3 of the Revised Statutes (2 Rev. Stat., 383), which provides that whenever several suits shall be pending in the same court by the same plaintiff against the same defendant, for causes of action which may be joined, the court in which the same shall be prosecuted may, in its discretion, if it shall appear expedient, order the several suits to be consolidated into one action. These actions are pending in the same court, and by the same plaintiff against the same defendant, and for causes of action which might be joined. There is no |