Coghlan v. Coghlan & Shuttleworth, Inc.

226 A.D. 764

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 15, 1929
• Status: Published

Opinion

Order denying motion to strike out the defense set forth in the 4th paragraph of the amended answer, and the partial defenses contained in the 5th and 6th paragraphs of said amended answer, modified by striking out the defense contained in the said 4th paragraph, and as so modified, order affirmed, without costs. The defense of laches is not available in equity in an action brought within the time limited by the Statute of Limitations, by a stockholder suing on behalf of his corporation against an offending director for an accounting of corporate moneys. (Coit v. Campbell, 82 N. Y. 509, 514; Pollitz v. Wabash R. R. Co., 207 id. 113, 130.) We regard the partial defenses as relating solely to so much of the complaint as alleges a failure to hold corporate meetings or an irregularity in connection therewith in so far as concerns the election of directors. We do not decide at this time that the remedy afforded by sections 29-32 of the General Corporation Law

* is exclusive. That question may not be essential to a determination of the plaintiff’s rights, and her allegations in respect thereto may simply be evidentiary on the question of the director’s alleged wrongful acts. We leave that proposition open for determination upon the trial. Lazansky, P. J., Rich, Kapper, Hagarty and Scudder, JJ., concur.

See Laws of 1923, chap. 732, amdg. § 31. See Gen. Corp. Law of 1929, §§ 22-25, effective Oct. 1, 1929. See Laws of 1929, chap. 650, §§ 2, 3. — [Rep.