270 A.D. 1011 | N.Y. App. Div. | 1946
Judgment and order affirmed, with costs. No opinion. Present— Martin, P. J., Townley, Glennon, Callahan and Peek, JJ.; Callahan and Peck JJ., dissent in memorandum as follows: The complaint in a derivative stockholders’ action, alleging that the individual defendants took unto themselves a corporate opportunity in forming Pekin Warehouse Co. and American Spirits, Inc., and seeking to impose a constructive trust on the shares of these corporations held by the individual defendants and on the profits derived by them from those enterprises, appears to state a claim for profits not correlated to any loss sustained by the corporation and the ten-year Statute of Limitations, therefore, governs. As to the defendant American Spirits, Inc., however, the claim is for its use of the funds, credits and facilities of American Distilling Company. The action there should be for the value of such services and the three or six-year statute would apply. (Turner v. American Metal Co., 268 App. Div. 239, 273.) As it is not clear from the pleadings and papers, however, that the three and six-year statutes have run on any cause of action against defendant American Spirits, Inc., its motion for summary judgment should be denied. The order and the judgment appealed from should be reversed and the motion denied.
