Cohen v. Friedland — 234 A.D. 786

Majority

p. 786

Benjamin Cohen, Suing on Behalf of Himself and Other Stockholders of Rugby Lumber Co., Inc., Similarly Situated, Who May Desire to Come in and Contribute to the Expense of this Action, Appellant, v. Joseph Friedland, Individually and as a Director of Rugby Lumber Co., Inc., and as Trustee in Dissolution of

p. 787

Rugby Lumber Co., Inc., Pursuant to Section 105 of the Stock Corporation Law, and Rugby Lumber Co., Inc., a Domestic Corporation in Dissolution, Respondents.

Order, in so far as it dismisses the complaint and directs judgment, and judgment entered thereon, reversed upon tbe law, witb ten dollars costs and disbursements, and judgment vacated. In so far as it grants tbe motion to strike out tbe causes of action contained in tbe complaint, tbe order is affirmed, witb ten dollars costs and disbursements, witb leave to- plaintiff to plead over witbin twenty days from tbe entry of tbe order herein. In our opinion, upon tbe facts set forth in tbe six so-called causes of action, tbe plaintiff has one cause of action, to wit, a stockholder’s derivative action, but be must first establish at tbe trial that be was defrauded of bis 150 shares of stock. Appeal from order denying motion to resettle order dismissed. Lazansky, P. J., Young, Kapper, Hagarty and Seudder, JJ., concur.