Kaufman v. Baker

11 A.D.2d 1013, 206 N.Y.S.2d 320, 1960 N.Y. App. Div. LEXIS 7494

Opinions

Appeals from orders of the Supreme Court at Special Term, entered June 22, 1960, in New York County, which denied motions by appellants for orders dismissing the complaint or, in the alternative, to stay all proceedings pending the determination of a Delaware action.

Memorandum by the Court. Orders, entered June 22,1960, denying defendants-appellants’ motion for a stay in a stockholders’ derivative action affirmed, with $20 costs and disbursements to the respondents. While the question is a close one, it is deemed the better exercise of discretion to allow the continuance of the New York action, despite the pendency of the Delaware action. There is the fact of different classes of plaintiffs, differently situated, in each action, as there is also the possibility that some defenses in abatement may lie against the Delaware plaintiffs and not be available against the New York plaintiffs. Apart from these distinctions, it is quite clear that success by the plaintiffs in the Delaware action will dispose of the New York action, as may any determination on the merits in the Delaware action.