In re Pivot Punch & Die Corp.

Appellate Division of the Supreme Court of New York

In re Pivot Punch & Die Corp.

9 A.D.2d 861, 193 N.Y.S.2d 34, 1959 N.Y. App. Div. LEXIS 6239

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

DecidedNovember 11, 1959

StatusPublished

Cited by2 cases

This text of 9 A.D.2d 861 (In re Pivot Punch & Die Corp.) 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.

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In re Pivot Punch & Die Corp., 9 A.D.2d 861, 193 N.Y.S.2d 34, 1959 N.Y. App. Div. LEXIS 6239 (N.Y. Ct. App. 1959).

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Opinion

Order modified to the extent of directing that the hearing be before the court and not a referee, and as modified affirmed, with $50 costs and disbursements to the respondent. Memorandum: Recognizing, as we do, the principles enunciated in the Matter of Badom & Neidorff (307 N. Y. 1) we find in this record sufficient conflicting averments in the lengthy affidavits and voluminous documentary evidence to sustain the determination of Special Term that a hearing should be held to give the parties an opportunity to present their proofs on the controverted issues (cf. Matter of Whitehall Art Co., 6 A D 2d 399). In view of the holding in Matter of Seamerlin Operating Co. (307 N. Y. 407, 416) that under section 113 of the General Corporation Law, Special Term may not review the findings of a referee but becomes functus officio after the appointment of a referee and in the exercise of a proper discretion (Matter of Whitehall Art Co., supra, p. 400) the hearing should be held before the court and not a referee. All concur. (Appeal from an order of Erie Special Term denying motions to amend the title to the proceeding and to dismiss the petition, granting petitioner’s cross motion to strike out respondents’ motion to dismiss, and other relief, in an action to dissolve a corporation.) Present — MeCurn, P. J., Kimball, Bastow, Goldman and Halpern, JJ.

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Order modified to the extent of directing that the hearing be before the court and not a referee, and as modified affirmed, with $50 costs and disbursements to the respondent. Memorandum: Recognizing, as we do, the principles enunciated in the Matter of Badom & Neidorff (307 N. Y. 1) we find in this record sufficient conflicting averments in the lengthy affidavits and voluminous documentary evidence to sustain the determination of Special Term that a hearing should be held to give the parties an opportunity to present their proofs on the controverted issues (cf. Matter of Whitehall Art Co., 6 A D 2d 399). In view of the holding in Matter of Seamerlin Operating Co. (307 N. Y. 407, 416) that under section 113 of the General Corporation Law, Special Term may not review the findings of a referee but becomes functus officio after the appointment of a referee and in the exercise of a proper discretion (Matter of Whitehall Art Co., supra, p. 400) the hearing should be held before the court and not a referee. All concur. (Appeal from an order of Erie Special Term denying motions to amend the title to the proceeding and to dismiss the petition, granting petitioner’s cross motion to strike out respondents’ motion to dismiss, and other relief, in an action to dissolve a corporation.) Present — MeCurn, P. J., Kimball, Bastow, Goldman and Halpern, JJ.

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9 A.D.2d 861, 193 N.Y.S.2d 34, 1959 N.Y. App. Div. LEXIS 6239, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-pivot-punch-die-corp-nyappdiv-1959.

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