Spielberger v. Meyer

278 A.D. 794, 1951 N.Y. App. Div. LEXIS 4758

Opinion

In an action by one faction against another faction of a religious corporation seeking, inter alia, to restrain defendant faction from interfering with plaintiff faction in acting as trustees of the corporation, and to restrain said defendants from acting as trustees, appellant bank (with which some of the property of the religious corporation is on deposit) moved to dismiss the complaint on the grounds that plaintiff trustees have no legal capacity to sue and because each of the causes of action was insufficient. The motion was denied. Order affirmed, with $10 costs and disbursements. (See Spielberger V. Meyer, post, p. 794, decided herewith.) Incident to the main purpose of this action, plaintiffs’ purpose also is to put the appellant bank on notice that the funds on deposit with it are properly subject to the control of plaintiff faction rather than defendant faction. Johnston, Wenzel and MacCrate, JJ., concur; Carswell, Acting P. J., dissents and votes to reverse the order and to grant appellant’s motion to dismiss the complaint on the ground that the causes of action, if any, pleaded against appellant bank belong to the corporation and may be enforced only in the name or in behalf of the corporation and not by plaintiff individuals. Adel, J., not voting.