McCarthy Co., Inc. v. Hill

67 N.E.2d 375, 295 N.Y. 320, 1946 N.Y. LEXIS 837

Opinion

Per Curiam-.

Testimony of the plaintiff’s sole stockholder, to the effect that he was ignorant of Cunningham’s withdrawals of cash from the plaintiff corporation until after the latter’s death, should have beeu excluded under Civil Practice Act, section 347 (Boyd v. Boyd, 164 N. Y. 234, 244; Clift v.Moses, 112 N. Y. 426). Although the action in form was for an accounting, there was neither allegation nor proof that Cunningham received anything for which he was accountable to the plaintiff except cash withdrawn without authority. Under these circumstances no action for an accounting could be brought (Dunlap’s Sons, Inc., v. Spurr, 285 N. Y. 333), and the defendants were entitled to trial by a jury, which was demanded and refused.

The order of the Appellate Division, reversing the order of Special Term granting defendants’ motion to dismiss the twentieth cause of action in the amended complaint, should, be reversed, and the order granting such motion affirmed.

The judgment entered May 23,1945, upon the order of affirmance of the Appellate Division dated May 18, 1945, should be reversed, with costs in all courts.

Loughran, Ch. J., Lewis, Conwat, Desmond, Thacher and Dte, JJ., concur; Medalie, J., deceased.

Ordered accordingly.