Tomasello v. Trump

29 Misc. 2d 717, 211 N.Y.S.2d 943, 1961 N.Y. Misc. LEXIS 3463

• Court: New York Supreme Court
• Decided: February 1, 1961
• Status: Published

Opinion

Anthony M. Livoti, J.

The plaintiff in this derivative stockholders’ action to compel the declaration of dividends and to recover on behalf of 10 parent corporations for alleged waste and misuse of corporate assets, moves to restrain the directors and officers pendente lite from continuing such alleged misconduct, and for the appointment of a receiver of 24 of the corporations involved.

The court is of the opinion that the necessity for such drastic relief has not been shown and that it would be an improvident exercise of direction to interfere with the affairs of profitable corporations, supplanting their management by a receivership. The right to a temporary injunction and receivership has been seriously disputed on jurisdictional grounds and on the merits. Whether the acts complained of were wrongful or illegal cannot be determined except by a full trial, the outcome of which is impossible to forecast upon the present papers.

Under these circumstances, the motion is in all respects denied. Either side may place the cause on the calendar for an early trial, on five days’ notice, as soon as the pleadings have been closed by the service of the answer to the further amended complaint, which the plaintiff has been directed to serve in conformity with the decision of this court rendered simultaneously herewith.