Jno. Dunlop's Sons, Inc. v. Spurr — 285 N.Y. 333

Majority

p. 333

Jno. Dunlop’s Sons, Inc., Appellant, v. Jean A. D. Spurr, as Executrix of John D. Dunlop, Deceased, et al., Respondents.

Argued February 27, 1941;

decided April 24, 1941.

p. 335

Emil Weitzner and Eugene M. Parter for appellant.

Horace S. Manges, Gabriel Kaslow and James H. Mathias for respondents.

Potter v. Walker ( 276 N. Y. 15 ) did not decide that the ten-year Statute of Limitations (Civ. Prac. Act, § 53) is necessarily applicable to all cases in which corporate directors have profited in any degree through a breach of their fiduciary duties. In such a case an action for an accounting may be brought only for the recovery of gains received by the directors beyond the amount of losses caused to the corporation by their wrong. Where, as in the present case, the gains received by the directors do not exceed the correlated losses suffered by the corporation, no accounting is necessary and the Statute of Limitations which controls the remedy at law is to be applied. (See Goldstein v. Tri-Continental Corp., 282 N. Y. 21 .)

The judgment should be affirmed, with costs.

Lehman, Ch. J., Loughban, Pinch, Lewis and Desmond, JJ.; concur; Rippey and Conway, JJ., concur in result.

Judgment affirmed.

Cases cited

Potter v. Walker 276 N. Y. 15 N.Y. 1937-11-23 p. 335
Goldstein v. Tri-Continental Corp. 282 N. Y. 21 N.Y. 1939-12-28 p. 335