Lever v. Guaranty Trust Co.

Appellate Division of the Supreme Court of New York

Lever v. Guaranty Trust Co.

262 A.D. 1044, 30 N.Y.S.2d 532, 1941 N.Y. App. Div. LEXIS 7167

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

DecidedOctober 27, 1941

StatusPublished

Cited by8 cases

This text of 262 A.D. 1044 (Lever v. Guaranty Trust Co.) 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.

Bluebook

Lever v. Guaranty Trust Co., 262 A.D. 1044, 30 N.Y.S.2d 532, 1941 N.Y. App. Div. LEXIS 7167 (N.Y. Ct. App. 1941).

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Opinion

In a stockholder’s derivative action, order granting motion of the defendants-respondents for judgment dismissing the complaint as to them, pursuant to rule 107 of the Rules of Civil Practice, subdivisions 5 and 6, Order and judgment unanimously affirmed, with ten dollars costs and disbursements. In the light of the appellant’s admitted abandonment of the second cause of action, [1045]*1045consideration of this appeal has been confined to the issues presented with respect to the first cause of action. The allegations therein contained do not serve to transform this cause into one the gravamen of which is actual fraud. It is simply a cause of action for breach of duty or neglect, and such cause is complete without the allegations of fraud, which are, therefore, unessential and may not serve to invoke the application of subdivision 5 of section 48 of the Civil Practice Act. (Carr v. Thompson, 87 N. Y. 160; Brick v. Cohn-Hall-Marx Co., 276 id. 259; Pitcher v. Sutton, 238 App. Div. 291; affd., without opinion, 264 N. Y. 638; Cohen V. City Company of New York, 283 id. 112; Hearn 45 St. Corp. v. Jano, Id. 139.) Present — Lazansky, P. J., Hagarty, Carswell, Taylor and Close, JJ.

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In a stockholder’s derivative action, order granting motion of the defendants-respondents for judgment dismissing the complaint as to them, pursuant to rule 107 of the Rules of Civil Practice, subdivisions 5 and 6, Order and judgment unanimously affirmed, with ten dollars costs and disbursements. In the light of the appellant’s admitted abandonment of the second cause of action, [1045]*1045consideration of this appeal has been confined to the issues presented with respect to the first cause of action. The allegations therein contained do not serve to transform this cause into one the gravamen of which is actual fraud. It is simply a cause of action for breach of duty or neglect, and such cause is complete without the allegations of fraud, which are, therefore, unessential and may not serve to invoke the application of subdivision 5 of section 48 of the Civil Practice Act. (Carr v. Thompson, 87 N. Y. 160; Brick v. Cohn-Hall-Marx Co., 276 id. 259; Pitcher v. Sutton, 238 App. Div. 291; affd., without opinion, 264 N. Y. 638; Cohen V. City Company of New York, 283 id. 112; Hearn 45 St. Corp. v. Jano, Id. 139.) Present — Lazansky, P. J., Hagarty, Carswell, Taylor and Close, JJ.

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Bluebook (online)

262 A.D. 1044, 30 N.Y.S.2d 532, 1941 N.Y. App. Div. LEXIS 7167, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lever-v-guaranty-trust-co-nyappdiv-1941.

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