278 A.D. 979 | N.Y. App. Div. | 1951
In a proceeding for the dissolution of a corporation by the owner of one half of its capital stock, petitioner appeals from an order which dismissed the petition on the merits. Order reversed on the law, with $10 costs and disbursements, and matter remitted to Special Term for determination in accordance with the provisions of sections 103,113,114, and 117 of the General Corporation Law. The petition and answer disclose that there is disagreement as to the management of the corporate affairs. The answer admits that respondents DiDomenieo failed to attend a special meeting of the stockholders duly called in accordance with the provisions of section 22 of the General Corporation Law. There is an issue as to the refusal of said respondents to permit inspection of the corporate books or to give an accounting of the income of the corporation. On the petition and answer it could not be determined that dissolution of the corporation would not be for the best interests of the stockholders. The answer, verified December 27, 1950, alleges that the corporation was organized in 1926 to build three “ small properties and to sell them just after the construction of them, at a profit”; it does not allege that they have been sold and admits that no dividend has been paid since the date of organization. There is no statement of the present income or of any profit in the past. In Matter of Cantelmo (Brewer) (275 App. Div. 231), there was a hearing before a Referee, and the evidence warranted the conclusion that the corporation there involved was “functioning actively and with profit” and “growing steadily, with profits to both parties”. Holán, P. J., Johnston, Adel, Wenzel and MacCrate, JJ., concur.