Martin Foundation, Inc. v. Phillips-Jones Corp.

280 A.D. 981, 116 N.Y.S.2d 468, 1952 N.Y. App. Div. LEXIS 4481

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 3, 1952
• Status: Published

Opinion

In this stockholders’ derivative action, defendants appeal from a resettled order which denied a motion by the individual defendants to dismiss the complaint and for summary judgment on the grounds that the action has become moot and that no justiciable controversy exists. The corporate defendant and four of the individual defendants also, appeal from an order granting plaintiffs’ motion for an examination before trial. Orders reversed, without costs, the motion of the individual defendants to dismiss the complaint and for summary judgment granted, without costs, and the motion for examination before trial denied, without costs, without prejudice to any application which plaintiffs may be advised to make for an allowance for counsel fees and expenses incurred. Cancellation of the contracts of which plaintiffs have complained has been established prima facie by documentary evidence, consisting of the offers to cancel, which were reduced to writing, and the resolution of the board of directors of the defendant corporation; and the plaintiffs have not shown the existence of facts sufficient to raise an issue with respect to the verity and conclusiveness of said documentary evidence. Further, it does not appear that any contracts or arrangements similar to the contracts in question are threatened and imminent. Carswell, Acting P. J., Johnston, Wenzel, MaeCrate and Schmidt, JJ., concur.