Shane v. Ohlstein

24 A.D.2d 742, 263 N.Y.S.2d 532, 1965 N.Y. App. Div. LEXIS 3310

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 14, 1965
• Status: Published

Opinion

Order entered June 23, 1965, denying plaintiff’s motion to strike defenses, unanimously modified, on the law, to the extent of granting the motion as to the first and second defenses, and, as so modified, affirmed. The first defense alleges conclusorily, without supporting allegations of fact, that plaintiff Shane is attempting to freeze out the defendant Ohlstein, Said defendant’s alleged personal claim against the plaintiff is no defense to this action in behalf of the corporation. The second defense alleges, without factual support, that plaintiff has committed unspecified wrongs against the corporation. Such wrongs as may have been committed by the plaintiff do not constitute a defense to the wrongs against the corporation allegedly committed by the defendant Ohlstein. (See Binon v. Boel, 271 App. Div. 505, affd. 297 N. Y. 528.) Moreover, it does not appear that plaintiff has an adverse interest in respect of the matters alleged in the complaint. (Cf. Williams v. Wolf, 255 App. Div. 539,) Settle order on notice. Order entered July 7,1965, denying and granting, in part motions for examinations before trial, unanimously modified, on the law, to the extent of granting plaintiff’s motion for the examination of defendant Jack Ohlstein, the examination of plaintiff to follow the completion of the examination of the said defendant by the plaintiff, and, as go modified, affirmed, with one bill of $30 costs and disbursements to plaintiff-appellant in respect of appeals 9298 and 9299. The complaint sufficiently and factually alleges misconduct on the part of defendant Ohlstein to justify the examination. Settle order on notice. Concur—'Botein, P. J., Breitel, McNally, Eager and Steuer, JJ,