Kalmanash v. Smith

265 A.D. 665, 40 N.Y.S.2d 287, 1943 N.Y. App. Div. LEXIS 6380

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 15, 1943
• Status: Published

Opinions

In a stockholder’s derivative action (1) order, insofar as appealed from, denying the motion of the named defendants for judgment dismissing the fifth cause of action upon the ground that it does not state facts sufficient to constitute a cause of action, and denying the motion to strike out paragraph 27 of the amended complaint on the ground that the matter therein contained is irrelevant, unnecessary and impertinent and may tend to prejudice, embarrass and delay the fair trial of the action; and (2) order denying the motion of the defendants Baumhogger and Dugan to dismiss the amended complaint as against them on the ground that the alleged causes of action are barred by the Statute of Limitations; and (3) order denying the motion of defendant Morris to dismiss the amended complaint as against him on the ground that the alleged causes of action are barred by the Statute of Limitations, affirmed, with one bill of ten dollars costs and disbursements against appealing defendants. Mo opinion.

Close, P. J., Taylor and Lewis, JJ., concur; Hagarty, J., dissents in part, with opinion, in which Adel, J., concurs.