24 Misc. 2d 261 | N.Y. Sup. Ct. | 1960
Defendants move for dismissal of the complaint pursuant to subdivisions 2 and 4 of rule 106 of the Rules of Civil Practice. They are charged as officers and directors of the corporation with fraudulently and wrongfully withdrawing and syphoning off to their own use assets belonging to the plaintiff, and that these wrongs occurred prior to July 1, 1959. Ordinarily this would be a stockholders’ suit, but the action is brought by the corporation. Defendants urge that all of the capital stock of the corporation was acquired on July 1, 1959 by its present sole stockholder, which would not qualify as a plaintiff stockholder to sue derivatively. Since all of the stockholders are barred, the corporation is likewise (General Corporation Law, § 61; Capital Wine & Spirit Corp. v. Pokr ass, 277 App. Div. 184, affd. 302 N. Y. 734), and if this appears on the face of the complaint it must be dismissed.
The motion is granted and the complaint is dismissed. Settle order.