Opinion of the Court, by FREEDMAN, J. BY THE COURT.-FREEDMAN, J.-The motion for a nonsuit was granted on the ground that the contract sued upon was not the contract of the defendants, and that they were not liable on it, and if the defendants were in a position to raise the objection, the complaint was properly dismissed. In Ham v. The Mayor, &c (37 Superior Ct. R. 458), this court distinctly held that the defendants are not liable for the acts or contracts of the Board of Education or the Department of Public Instruction, and this decision, if applicable to the case at bar, would be conclusive upon that point. But under the pleadings in this case the defendants could not raise the objection. The complaint charged the defendants with having made the contract for the work, and with having agreed to pay the contract price. The answer expressly admits these allegations, and refers to the school trustees of the Tenth-ward, as defendants' agents. The defendants have therefore concluded themselves by such admission. A party, who formally and explicitly admits, by his pleading, that which establishes the plaintiff's right, will not be suffered to deny its existence, or to prove any state of facts inconsistent with that admission (Paige v. Willet, 38 N. Y. 28). The admission referred to also precludes the defendants from insisting in the absence of a formal plea to that effect, that the contract as made is an illegal one. Since the Code, any new matter constituting a defense or partial defense must be pleaded (McKyring v. Bull, 16 N. Y. 297), and hence the objection that a contract which is fair upon its face, is illegal or contrary to public policy, must be taken by answer (Cummings v. Barkalow, 4 Keyes, 514). The judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event. CURTIS and SPEIR, JJ., concurred. Statement of the Case. MORGAN L. WEBB, PLAINTIFF AND APPELLANT, v. CORNELIUS VANDERBILT, et al., DIREC TORS OF THE LAKE SHORE AND MICHIGAN SOUTHERN RAILWAY COMPANY, IMPLEADED WITH THE LAKE SHORE AND MICHIGAN SOUTHERN RAILWAY COMPANY, AND OTHERS, DEFENDANTS AND RES PONDENTS. FRANCIS H. STODDARD, PLAINTIFF AND APPELLANT, v. SAME. EVERETT B. SANDERS, PLAINTIFF AND APPELLANT, v. SAME. JAMES LAURIE, PLAINTIFF, AND APPELLANT, v. SAME. THE TRUSTEES OF SMITH COLLEGE, PLAINTIFF AND APPELLANT, . SAME. I. DEMURRER.-ONE DEFENDANT OTHERS DEMUR. 1. EFFECT OF ON DEMURRANTS. ANSWERING WHILE 1. The fact that one of the defendants has answered, has no effect upon the determination of the question as to whether the demurrer is well taken or not. II. STOCKHOLDERS HOLDING COMMON STOCK,-WHEN ACTION WILL NOT LIE AGAINST. 1. An action at law to recover an ascertained debt due by the corporation, will not. 2. An action in equity to compel them as stockholders of common stock of a consolidated corporation to make, or to do any act towards causing to be made dividends on the stock of one of the consolidating companies, of earnings made by such consolidating company prior to the consolidation, the payment of which dividends is claimed to have been assumed by the consolidated company, or to compel them to declare or do any act towards causing to be declared, dividend on the stock of such consoli Appellant's points. dating company of the earnings of the consolidated one will not. a. Compare the opinion in this case with the one in Chase v. Vanderbilt (37 N. Y. Superior Ct. R. 334). Before FREEDMAN, CURTIS and SPEIR, JJ. Decided February 1, 1875. These are appeals from orders sustaining demurrers to the complaints, with leave to the plaintiff to amend. The substance of the complaints and demurrers is the same as that of the complaint and demurrers in Chase v. Vanderbilt (33 N. Y. Sup'r Ct. R. 334). Birdseye, Cloyd, & Baylis, attorneys, and Lucien Birdseye, of counsel for appellant, urged;-I. It is not proposed to re-argue here any of the questions passed upon by the general term of this court in Chase. v. Vanderbilt (37 N. Y. Sup'r Ct. R. 334); but, assuming all that was held by the court in that opinion, and adding other material facts (which although before the court in that case, were not referred to or considered by it), to ask for the judgment of the court upon the points raised by such additional and material facts. Those additional facts are that, while Vanderbilt and other individual defendants demurred to the complaint, the corporation-the Lake Shore & Michigan Southern Railway Company-had appeared and answered in the action, taking issue upon the allegations of the complaint, and that the demurrants are holders of the common stock of the Lake Shore & Michigan Southern Railway Company. II. After an answer has been interposed to the complaint, the demand for relief becomes immaterial (Code 275; Marquat v. Marquat, 12 N. Y. 336; Emery v. Pease, 20 N. Y. 62). The only limitations put upon the rule that, after answer, the demand of relief in the Appellant's points. complaint is immaterial, are: (1) That the relief must be limited to such as is proper in reference to the parties before the court. (2) It must be consistent with the case made by the complaint and embraced within the issue. (3) An action must be the proper remedy (Smith v. Howard, 20 How. Pr. R. 151; Cowenhoven v. City of Brooklyn, 38 Barb. 9; Bradley . Aldrich, 40 N. Y. 510; Hart v. Harvey, 21 How. Pr. R 382; Barlow v. Scott, 24 N. Y. 40; Armitage v. Pulver, 37 N. Y. 494; Greason v. Keteltas, 17 N. Y. 491; N. Y. Ice Co. v. North Western Ins. Co. of Oswego, 23 N. Y. 357; Bidwell v. Astor Mutual Ins. Co., 16 N. Y. 263; Heywood v. City of Buffalo, 14 N. Y. 534; Rome Exchange Bank v. Eames, 1 Keyes, 588; Mann v. Fairchild, 2 Keyes, 106; Beach v. Cook, 28 N. Y. 508; Wright v. Hooker, 10 N. Y. 51; Scott ». Pilkington, 15 Abb. 280; Gordon v. Hostetter, 4 Abb. N. S. 263; Colten v. Jones, 7 Rob. 164; Byxbie v. Wood, 24 N. Y. 607). III. It appearing that a good cause of action, of a legal character, is stated in the complaint against the Lake Shore & Michigan Southern Railway Company, as a corporation, upon its assumption of a guarantee of the preferred dividends, and that that corporation interposed an answer to that complaint; so that, under section 275 of the Code, and the cases decided under it, the demand for equitable relief has, as to that corporation, become immaterial, the action may proceed to trial upon the legal cause of action, and before a jury, if the corporation shall so insist; and the question now remains whether, to such an action against a corporation by a preferred stockholder, it is wholly incompetent and inadmissible to bring in holders of the common or unpreferred stock as defendants, to determine whether or not the holders of preferred stock are entitled to priority in payment of dividends over the common or unpreferred stock. It is submitted that, to Appellant's points. such action, the common stockholders, or some of them, are proper parties (Code, §§ 118, 119). (4) Section 118 of the Code merely re-enacts the former practice. It divides parties into two classes: (a) Those who are proper parties, whom, therefore, the plaintiff may sometimes join, or omit to join, as parties, in his discretion. (b) Those who are necessary parties, without whom the suit is absolutely defective. (5) The former rule on this point was to the same effect (Bailey r. Inglee, 2 Paige, 278; Butts v. Genung, 5 Paige, 254, 256; Wendell v. Van Rensselaer, 1 Johns. Ch. 344, 349 ; Wiser v. Blatchley, 1 Id. 437; Murray v. Hay, 1 Barb. Ch. 59; Weale v. West Middlesex Water Works Co., 1 Jac. & Walk, 369; The Attorney-General v. Jackson, 11 Vesey (Sumner), 365 and notes. Adair v. The New River Co., 11 Id. (Sumner), 429, 443; Cockburn v. Thompson, 16 Id. (Sumner), 321, 325-8, and notes page 3:0). See 1 Moak's Van Santvoord's Pleadings, 105, where he speaks of "necessary, as well as proper parties defendant" (ld. 107), &c., as to cases "where persons who are not absolutely necessary parties may be made defendants, at the election of the complainants" (Id. 746, 859). (6) The facts stated as to the number, absence, &c., of the common stockholders, sufficiently excuse the joining of any other holders of common stock than those named in the complaint (Code, § 119. 1 Moak's Van Santvoord's Pleadings, 77, 79, 116-17, &c.). (7) In Thompson v. The Erie Railway Co. (45 N. Y. 468, 478), the court of appeals very recently overruled the position that in a suit (precisely like the present) by a stockholder to recover preferred or guaranteed dividends, the common stockholders were absolutely essential parties. But the ruling of the court treats them as proper parties, so that their joinder would not be ground for a demurrer. (8) In numerous actions in England and Ireland, brought to enforce the rights of preferred stockholders to their dividends, it has never |