130 N.Y.S. 684 | N.Y. App. Div. | 1911
This is an appeal from an order denying a motion to vacate •an order for the examination' of the defendants David H. Van Name and.the F. 0. Linde Company before trial. The motion was properly denied, if the action has not abated, and the one question presented by the appeal is whether or not it has abated.
The plaintiff sues as a director of the F. 0. Linde Company, charging his codirectors with various acts of misconduct in the management of the affairs of the corporation, and asking appropriate relief. Since the action was brought the plaintiff has ceased to be a director of the company, having failed of selection at the annual meeting held on February 18, 1911. The action is brought under sections 90 and 91 of the General Corporation Law (Consol. Lawsj chap. 23; Laws of 1909, chap. 28), which were formerly sections .1181 and 1182 of the Code of Civil Procedure. Those sections provide that an action may be maintained against one or more trustees, directors, managers or • other officers of a corporation for any one of a number of purposes, including the purposes for which this action is brought. (§ 90.) Such an action may be brought by the Attorney-General; in certain cases by a creditor of the corporation; “ or by a trustee, director, manager or other offi.cer of the. corporation having a general superintendence of its concerns.” (§ 91.) It was only by virtue of his incumbency of
The order must, therefore, be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs. • ■ ■
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.