Goldstein v. Lightner

266 A.D. 357, 42 N.Y.S.2d 338, 1943 N.Y. App. Div. LEXIS 3567

Opinion

Per Curiam.

The second cause of action was properly dismissed. Concededly, this action is identical with that pleaded in the case of Strassburger v. Singer Mfg. Co. (263 App. Div. 518). In the cited case the complaint, which sought a judgment to require this same corporate defendant, a New Jersey corporation, to pay out in dividends part of a large surplus not needed for the business of the corporation, was dismissed by this court. The basis of the ruling in the Strassburger case was that the subject matter involved the internal management of a foreign corporation over which the courts of this State should decline jurisdiction.

However, there was no justification for the dismissal of the first cause of action, which is a derivative suit in behalf of the corporation, to recover from defendant directors of a foreign corporation damages for the breach of their fiduciary duty resulting in waste of the corporate assets. To this cause of action the doctrine of forum non conveniens does not apply. (Cuppy v. Ward, 187 App. Div. 625, 632, affd. 227 N. Y. 603; Hamm v. Christian Herald Corp., 236 App. Div. 639, 642; Weinstein v. Aeolian Co., 243 App. Div.. 355, 356.)

The judgment should accordingly be reversed, with costs, and the order modified to the extent of denying the motion to dismiss the first cause of action stated in the complaint, and as so modified affirmed.

Martin, P. J., Untermyer, Dore, Cohn and Callahan, JJ., concur.

Judgment unanimously reversed, with costs, and the order modified to the extent of denying the motion to dismiss the first cause of action stated in the complaint, and as so modified affirmed.