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Lyon v. Holton

286 N.Y. 270 Court N.Y. Decision date 1941-07-29 English

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p. 270
Howard W. Lyon et al., Appellants, v. Charles R. Holton et al., Defendants, and Willard A. Mitchell et al., as Executors of Charles M. Schwab, Deceased, et al., Respondents.
Argued January 21, 1941;
decided July 29, 1941.
p. 271
Samuel J. Levinson and Frank Weinstein for E. Flora Allen, appellant.
William S. Bennet, Victor House and Samuel H. Levinkind for Howard W. Lyon et al., appellants.
The corporation must be retained as a party defendant in order to permit proceedings against other defendants not parties to this appeal. (Greaves v. Gouge, 69 N. Y. 154 ; Flynn v. Brooklyn City R. R. Co., 158 N. Y. 493 ; Niles v. N. Y. C. & H. R. R. R. Co., 176 N. Y. 119 .)
Alfred McCormack, Hoyt A. Moore, L. R. Breslin, Jr., George M. Billings and Willard A. Mitchell for respondents.

This is an action brought by stockholders to recover a money judgment against the directors of a corporation, and also to obtain certain injunctive relief against both the directors and the corporation itself. Summary judgment has been granted on motion by the corporation and by some of the individual defendants. Since the action continues as to the non-moving defendants, plaintiffs are entitled to have the corporation retained as a nominal party defendant in so far as relief is sought against the remaining individual defendants in favor of the corporation. To the extent that the plaintiffs sought relief against the corporation, and in all other respects except as noted above, the dismissal of the complaint was proper. The judgment,

p. 272
however, should be modified so that the corporation will be retained as a nominal party defendant in the action con- ¡ tinning against the non-moving individual defendants. t The judgments should be modified in accordance with this ¡ opinion and as so modified affirmed, without costs. , !

Lehman, Ch. J., Lotjghran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Judgment accordingly.

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