Aschkenasy v. Teichman

Appellate Division of the Supreme Court of New York

Aschkenasy v. Teichman

12 A.D.2d 904, 210 N.Y.S.2d 593, 1961 N.Y. App. Div. LEXIS 12691

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 14, 1961

StatusPublished

This text of 12 A.D.2d 904 (Aschkenasy v. Teichman) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Aschkenasy v. Teichman, 12 A.D.2d 904, 210 N.Y.S.2d 593, 1961 N.Y. App. Div. LEXIS 12691 (N.Y. Ct. App. 1961).

Pincite

Opinion

Order entered on November 13, 1959 unanimously reversed, on the law, the first defense and the second defense and counterclaim are stricken, and the denials contained in paragraphs 1, 2 and 5 of the answer are stricken as sham in accordance with the relief sought in the notice of motion, with $20 costs and disbursements to plaintiffs-appellants. Aside from the fact that the arbitration agreement among the stockholders does not appear to embrace the issues presented in this derivative stockholder’s action, it may not be pleaded in the first defense, since defendants’ exclusive remedy was to apply for a stay of the action pursuant to section 1451 of the Civil Practice Act (American Reserve Ins. Co. v. China Ins. Co., 297 N. Y. 322; Marvin v. Thomas J. Hoffman, Inc., 280 App. Div. 616). A reading of the prayer for relief indicates that the individual plaintiff is suing solely in the right of the corporation and not for his individual benefit. Under the circumstances a counterclaim may not be asserted against him as an individual (Binon v. Boel, 297 N. Y. 528; Select Theatres Corp. v. Harms, Inc., 273 App. Div. 505). Settle order on notice. Concur — Botein, P. J., Breitel, Rabin, McNally and Eager, JJ.

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Order entered on November 13, 1959 unanimously reversed, on the law, the first defense and the second defense and counterclaim are stricken, and the denials contained in paragraphs 1, 2 and 5 of the answer are stricken as sham in accordance with the relief sought in the notice of motion, with $20 costs and disbursements to plaintiffs-appellants. Aside from the fact that the arbitration agreement among the stockholders does not appear to embrace the issues presented in this derivative stockholder’s action, it may not be pleaded in the first defense, since defendants’ exclusive remedy was to apply for a stay of the action pursuant to section 1451 of the Civil Practice Act (American Reserve Ins. Co. v. China Ins. Co., 297 N. Y. 322; Marvin v. Thomas J. Hoffman, Inc., 280 App. Div. 616). A reading of the prayer for relief indicates that the individual plaintiff is suing solely in the right of the corporation and not for his individual benefit. Under the circumstances a counterclaim may not be asserted against him as an individual (Binon v. Boel, 297 N. Y. 528; Select Theatres Corp. v. Harms, Inc., 273 App. Div. 505). Settle order on notice. Concur — Botein, P. J., Breitel, Rabin, McNally and Eager, JJ.

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Bluebook (online)

12 A.D.2d 904, 210 N.Y.S.2d 593, 1961 N.Y. App. Div. LEXIS 12691, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aschkenasy-v-teichman-nyappdiv-1961.

Opinion

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