157 N.Y.S. 31 | N.Y. Sup. Ct. | 1916
In an action brought by a stockholder of a national bank against its directors for damages for alléged waste of its assets by mismanagement, the complaint alleges as an excuse for not making a demand upon the bank that it bring such suit that the defendants constitute a majority of such directors. An affirmative defense sets up that prior to the commencement of the action the bank went into voluntary liquidation, pursuant to section 5220 of the Revised Statutes of the United States, and the shareholders appointed a committee “ to liquidate the affairs of the bank, ’ ’ and further alleges that by such act the matter of realizing on the assets of the bank was thereafter kept out of the control of the board of directors, and that the directors, since the passage of such resolution, have had no power over the bringing of actions by the bank or over its assets, but that such power since that time has vested in the liquidating committee. This defense is demurred to., but as the allegation that the liquidating committee superseded the directors as the controlling authority of the bank is made expressly to depend upon the effect of such resolution, the demurrer admits only the adoption of the resolution and not the results which the pleader alleges flowed from such action. Such further allegations are plainly conclusions, and not admitted by the demurrer. Greeff v. Equitable Life Assurance Soc., 160 N. Y. 19, 29. If it were a fact that the liquidating committee became the controlling authority and that such committee and not the directors thereafter had the power to determine what ac
Ordered accordingly.