Curran v. Oppenheimer

Headnote

Curran v. Oppenheimer, 164 App. Div. 746 , affirmed.

• Appeal from a judgment, entered January 18, 1915, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and directing a dismissal of the complaint. This action was brought against the directors of the Unity Realty Corporation, which was organized under the laws of the state of New York (the respondent alone being served), to compel them to account for their official conduct in the management and disposition of the funds and property of the corporation committed to their charge. The plaintiff sued, as the assignee of a judgment for $12,259.32, recovered against the corporation. It was charged that the corporation was organized for the purpose of acquiring a parcel of real estate in the city of New York extending from Sixty-second to Sixty-third streets on Central Park West; that at all times this property or the proceeds of the sale thereof constituted substantially the entire

assets and property of the corporation; that in October, 1905, the property was sold for $735,000, which amount was received by the corporation and constituted a trust fund in its hands and in those of its directors for the payment of its creditors, including plaintiff, and that such creditors had an equitable lien prior to the defendants and to all other persons, except the holders of certain underlying mortgages against the property conveyed, aggregating $459,950. It was then alleged that this trust fund was more than sufficient to pay all of the obligations of the corporation, but that the defendants had failed to pay the plaintiff’s judgment, and that they acting in their capacity as directors of said corporation have, in violation of their duties, transferred all the assets of said company and have distributed the proceeds of said sale, or a portion thereof, more than sufficient to pay the plaintiff’s judgment and interest to and among the stockholders and directors of the corporation.