Redmond v. Redmond

42 A.D.2d 542, 345 N.Y.S.2d 12, 1973 N.Y. App. Div. LEXIS 4134

Opinion

Orders, Supreme Court, Bronx County, each entered on September 8, 1972, granting plaintiff’s motion in each of' the entitled actions, for a preliminary injunction restraining the defendants-appellants from voting for or adopting ..any resolution for the removal of plaintiff as treasurer of B. Redmond & Son, Inc., and as treasurer of Chiplets, Incorporated, unanimously reversed, on the law, the facts, and in the exercise of discretion and the motions are denied, without costs ^and without disbursements. It appearing that an early trial should be had herein, and the parties, upon the argument of the appeal having expressed their consent thereto, a prompt trial is directed. The record fails to support plaintiff’s clear right to the relief demanded. (See Ultra Fuel Gorp. v. Johnston, 30 A D 2d 801.) Issues of fact are raised with respect to plaintiff’s loyalty to the corporations and accordingly, the stockholders’ agreement may not, in and of itself, constitute a bar to plaintiff’s removal as an officer or director (see Fells v. Katz, 256 N. Y. 67, 72). Moreover, the statutory grounds justifying issuance of the preliminary injunction have not been satisfied. Plaintiff’s right, for example, to continue as treasurer of the two corporations does not involve the subject matter of these actions — which are brought in respect of defendants’ alleged mismanagement and waste. (CPLR 6301; Bdbho Fealty Co. v. Feffer, 230 App. Div. 866.) Concur — Kupferman, J. P., Murphy, Lane, Tilzer and Capozzoli, JJ.