Gerben v. Gerben-Hecht Rim Wheel Corp.

252 A.D. 482, 299 N.Y.S. 966, 1937 N.Y. App. Div. LEXIS 5692

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 19, 1937
• Status: Published

Opinion

Per Curiam.

The complaint, which is addressed to the equity side of the court, fails to state a cause of action and, consequently, Charles Gerben, suing as a director of the defendant Gerben-Hecht Rim Wheel Corp., is not entitled to any relief on behalf of the corporation.

The only theory upon which a recovery could be had must be based upon the so-called fraud which the defendant Henry Hecht is alleged to have perpetrated upon the Whitehead Metal Products Co, of New York, Inc., when it was induced to enter into a contract to sell niqkel to Alloys and Products, Inc, Whitehead Metal Products Co. of New York, Inc., is not a party and for aught we know has no grievance.

If fraud were practiced on the Whitehead Metal Products Co. of New York, Inc., the plaintiff, even though innocent of the original wrongdoing, if successful, would receive the fruits of the fraud from its director and thereby put its stamp of approval upon Ms alleged misconduct.

The four orders entered at Special Term should be reversed, with twenty dollars costs and disbursements, and the complaint dismissed as to all defendants.

Present — Martin, P. J., O’Malley, Townley, Qlennon and Untermyer, JJ.

Orders unanimously reversed, with twenty dollars costs and disbursements, and motions granted.