283 A.D. 709 | N.Y. App. Div. | 1954
Although defendants-appellants had served their brief on October 14, 1953, plaintiff’s counsel on the call of the calendar on February 3, 1954, had no brief ready, but asked an adjournment because of a death in his family occurring in January, 1954. The adjournment was denied, but plaintiff’s counsel was granted leave to argue and also to serve a brief at a time indicated. Plaintiff’s counsel did not argue and did not serve any brief. On February 5, 1954, the court was informed in letter from defendants’ attorneys, confirmed by an affidavit from the transfer agent of the stock of the defendant corporation, and a confirming affidavit from the attorney for the plaintiff, that plaintiff had ceased to be a stockholder of the corporation on October 20, 1953.
For the reasons stated and on the additional grounds that the complaint is insufficient for failure factually to state a cause of action under rule 106, and that plaintiff lacks capacity to sue under rule 107, the motion to dismiss the
Dore, J. P., Cohn, Callahan and Botein, JJ., concur.
Order unanimously reversed, with $20 costs and disbursements to the appellants, and the motion granted, and judgment is directed to be entered in favor of the appellants, without leave to replead, with costs. Settle order on notice.