Penney v. 138-19th Street Jackson Heights, Inc.

260 A.D. 1035, 24 N.Y.S.2d 359, 1940 N.Y. App. Div. LEXIS 5961

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 16, 1940
• Status: Published

Opinion

Order granting motion to dismiss the amended complaint for insufficiency reversed on the law, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, with leave to answer within ten days from the entry of the order hereon. The facts, as alleged in the complaint, are that respondent Shaffer does not dispute the existence of his indebtedness to the corporate defendant and that the individual defendants, other than John J. Duffle, as directors, refuse to proceed against Shaffer so as to enrich unjustly the latter at the expense of the corporate defendant and its stockholders. In addition, respondent Shaffer was elected a director of the corporate defendant for the year 1939. The showing is sufficient as a matter of pleading to warrant the conclusion that the directors are guilty of misconduct equivalent td a breach of trust. (Koral v. Savory, Inc., 276 N. Y. 215, 217.) Lazansky, P. J., Hagarty, Carswell, Taylor and Close, JJ., concur.