In re Allchester Development Co.

34 A.D.2d 660, 310 N.Y.S.2d 110, 1970 N.Y. App. Div. LEXIS 5123

Opinion

In a proceeding for judicial dissolution of a corporation, instituted by shareholders, the appeal is from a final order of Supreme Court, Westchester County, dated May 8, 1969, which granted the application. Final order reversed, on the law, without costs, and proceeding remitted to the Special Term for a new hearing and a new determination. The questions of fact have not been considered. The learned Justice at Special Term erred in denying appellants the right to introduce evidence at the hearing in opposition to the proposed corporate dissolution. Section 1109 of the Business Corporation Law mandates that the allegations and proofs of the parties be heard and the facts determined with respect to the proposed dissolution. Although the Justice may have been justifiably provoked by appellants’ tactics before and during the hearing, he nevertheless should have accorded the parties a full hearing, instead of terminating the proceeding abruptly, before petitioners had completed their case, and granting the relief requested (cf. Matter of Stewart [Citizens Cas. Co.], 23 N Y 2d 407). We wish to note, however, that our reversal is in no respect a condonation of appellants’ tactics; to the contrary, we strongly disapprove them. Brennan, Acting P. J., Hopkins, Benjamin, Martuseello and Kleinfeld, JJ., concur.