Austin v. Gardiner

Appellate Division of the Supreme Court of New York

Austin v. Gardiner

267 A.D. 863, 46 N.Y.S.2d 521, 1944 N.Y. App. Div. LEXIS 5176

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

DecidedFebruary 25, 1944

StatusPublished

Cited by4 cases

This text of 267 A.D. 863 (Austin v. Gardiner) 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

Austin v. Gardiner, 267 A.D. 863, 46 N.Y.S.2d 521, 1944 N.Y. App. Div. LEXIS 5176 (N.Y. Ct. App. 1944).

Pincite

Opinion

Per Curiam.

In this suit brought by a stockholder for relief against a parent company and certain subsidiaries and various officers and directors of the parent company, some five claims were made. There were defects in the pleading of three of these claims. Special Term accordingly held the complaint bad in part and gave leave for the service of an amended complaint. It was also urged, however, that the Statute of Limitations was a bar to the enforcement of all five claims. Special Term declined to pass upon the question of the Statute of Limitations on the ground that a new complaint was going to be served and it would be useless to determine the applicability of the Statute to a complaint which was going to be entirely superseded.

We think that all five of the alleged claims in substance charge waste of corporate assets without gains in excess of the correlated losses to the subsidiaries. In such a situation the provision of subdivision 7 of section 49 of the Civil Practice Act applies. (Corash v. Texas Co., 264 App. Div. 292.)

However, since the management and freight contracts seem to be continuing agreements and since the other claims may or may not have occurred within [864]*864three years of the bringing of this suit, we think that the extent to which the Statute of Limitations is a partial bar.should be left to the trier of the facts to determine.

The orders, so far as appealed from, should be affirmed, with twenty dollars costs and disbursements, with leave to the plaintiff to serve an amended complaint within ten days after entry of order.

Present — Martin, P. J., Townley, Glennon, Untermyer and Dore, JJ.

Orders, so far as appealed from, unanimously affirmed, with twenty dollars costs and disbursements, with leave to the plaintiff to serve an amended complaint within ten days after entry of order. [See post, p. 946.]

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Per Curiam.

In this suit brought by a stockholder for relief against a parent company and certain subsidiaries and various officers and directors of the parent company, some five claims were made. There were defects in the pleading of three of these claims. Special Term accordingly held the complaint bad in part and gave leave for the service of an amended complaint. It was also urged, however, that the Statute of Limitations was a bar to the enforcement of all five claims. Special Term declined to pass upon the question of the Statute of Limitations on the ground that a new complaint was going to be served and it would be useless to determine the applicability of the Statute to a complaint which was going to be entirely superseded.

We think that all five of the alleged claims in substance charge waste of corporate assets without gains in excess of the correlated losses to the subsidiaries. In such a situation the provision of subdivision 7 of section 49 of the Civil Practice Act applies. (Corash v. Texas Co., 264 App. Div. 292.)

However, since the management and freight contracts seem to be continuing agreements and since the other claims may or may not have occurred within [864]*864three years of the bringing of this suit, we think that the extent to which the Statute of Limitations is a partial bar.should be left to the trier of the facts to determine.

The orders, so far as appealed from, should be affirmed, with twenty dollars costs and disbursements, with leave to the plaintiff to serve an amended complaint within ten days after entry of order.

Present — Martin, P. J., Townley, Glennon, Untermyer and Dore, JJ.

Orders, so far as appealed from, unanimously affirmed, with twenty dollars costs and disbursements, with leave to the plaintiff to serve an amended complaint within ten days after entry of order. [See post, p. 946.]

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Bluebook (online)

267 A.D. 863, 46 N.Y.S.2d 521, 1944 N.Y. App. Div. LEXIS 5176, Counsel Stack Legal Research, https://law.counselstack.com/opinion/austin-v-gardiner-nyappdiv-1944.

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