Dornan v. Humphrey — 279 A.D. 1040

Majority

p. 1040

Clifford Dornan, Suing for Himself and All Others Similarly Situated, as Holders of Preferred Capital Stock of Financial Institutions, Incorporated, Respondents, v. Wolcott J. Humphrey, Individually and as Director and President of Financial Institutions, Incorporated, et al., Appellants.

Memorandum: On reargument by counsel for the defendants, and there being no appearance by the plaintiff and no brief filed in his behalf in opposition thereto, we determine, as a matter of discretion, to vacate our previous decision to remit the matter to the Official Referee to report the amount of the reasonable expenses, including attorneys’ fees, actually and necessarily incurred by the defendants in the defense of the action, and that this court determine that question on the record before us pursuant to the provisions of section 584 of the Civil Practice Act. It appears from the record that the defendants Wolcott J. Humphrey and Edwin R. Gott have incurred expenses in the sum of $19,039.68 and the defendants W. J. Peckham, Earl B. Hubbard, Julia D. Humphrey and T. P. Bevins have incurred expenses in the sum of $5,200 and that such expenses were necessarily incurred by these defendants in the defense of the action, and that these defendants are entitled to an order directing the corporation to reimburse them for such expenses. (See General Corporation Law, §§ 64, 67.) All concur. (Reargument of appeal involving motion for assessment of attorneys’ fees.) Present — Taylor, P. J., MeCurn, Vaughan, Piper and Wheeler, JJ.