Auserehl & Son to be traded for stock of the surviving corporation was set forth in the plan, as well as a provision naming all of the shareholders in Jamaica, except Julius Auserehl, and requiring each named shareholder to turn in his or her shares in Jamaica. Julius Auserehl’s name does not appear in the plan. On July 9, 1970, certificates were issued by Jamaica to those persons designated in the plan of merger giving the family of Albert Auserehl and the family of William Auserehl each 1,000 shares of class A voting stock. On this same date, Julius Auserehl delivered his certificates for 10 shares of class A voting stock in Jamaica and received a new certificate stating that he is the owner of 10 shares of class A voting stock in Jamaica. At all meetings subsequent to the merger and prior to the annual meeting on July 9, 1974, defendant, Julius Auserehl, has voted his shares in concert with those of the family of William Auserehl. At that annual meeting his shares were again voted together with the shares owned by the members of William Auserehl’s family, resulting in the election of defendants, Julius Auserehl, William Auserehl and Scott Lundstedt, as directors of Jamaica. This action was commenced shortly after the 1974 election, plaintiffs’ seeking in their first cause of action to rescind the issuance of the 10 shares of Jamaica stock to Julius Auserehl and in their second cause of action to annul the results of the 1974 election. Plaintiffs moved for partial summary judgment in respect to these two causes of action and defendants cross-moved for dismissal of both causes of action. Plaintiffs’ motion was denied while defendants’ motion to dismiss the first and second causes of action was granted. This appeal ensued. Plaintiffs contend that no provision was made in the plan of merger for the issuance of shares in Jamaica to Julius Auserehl and, therefore, the issuance of shares to him contravenes the requirements of section
902 of the Business Corporation Law. Section
902 (subd [a], par [3]) requires that the plan of merger set forth the manner and basis of converting the shares of each constituent corporation into shares of the surviving corporation or the cash or other consideration to be paid or delivered in exchange for shares of each constituent corporation. In our opinion there was no conversion or exchanging of shares by Julius Auserehl as contemplated by section
902. He held 10 shares of class A voting stock in Jamaica both before and after the merger. Although he exchanged his stock certificate for a new one, his shares in Jamaica remained unchanged. His shares in Jamaica were not converted for different shares. Consequently, we are of the view that section
902 did not require that the plan of merger refer to the 10 shares issued to Julius Auserehl, that these shares were properly issued, and the first and second causes of action were properly dismissed. Order and judgment affirmed, with costs. Sweeney, Main and Herlihy, JJ., concur; Greenblott, J. P., and Mikoll, J., dissent and vote to reverse in the following memorandum by Greenblott, J. P. Greenblott, J. P. (dissenting). We respectfully dissent. Section
902 of the Business Corporation Law requires that the plan of merger set forth "the manner and basis of converting the shares of each constituent corporation into shares * * * of the surviving or consolidated corporation” (subd [a], par [3]). By some unexplained process of interpretation, the majority hold that this simple statute does not require a statement of conversion of any shares in a constituent corporation if the owner of the shares is to receive the same number of shares in the surviving corporation. We see no such exception in the statute. Even if the statute could be so interpreted, the majority would still have to hold that 10 shares in the constituent corporation are identical to 10 shares in the survivor. This is error. First, the surviving corporation is not the equivalent of its predecessor, Jamaica, since