16 Misc. 2d 467 | N.Y. Sup. Ct. | 1959
This is a renewal of an application by defendants, Baker, Blankman, and Farmery, for an assessment of the expenses incurred by them, including the attorney’s fees, in connection with the defense of this action. The prior motion was denied by Mr. Justice Greenberg as premature, because made before the entry of final judgment. Since that time, judgment dismissing the complaint has been entered.
The application before Mr. Justice Greenberg was stated (in the moving affidavit of defendant Blankman) to be one
The answer submitted by the movants contained no denials of the allegations of the complaint, except a denial, as to themselves, of the allegations of paragraph 32. That paragraph, however, as previously indicated, does not relate to the movants and the denial is, therefore, meaningless. The remainder of the movants’ answer consists of cross claims against their codefendants, which still remain to be tried.
On the hearing of plaintiff’s motion for temporary injunction, the moving defendants, as the opinion of Mr. Justice Greenberg indicates (8 Mise 2d 317, 321), joined in plaintiff’s motion.
It thus appears that the moving defendants performed no services whatever ‘ ‘ in connection with the defense of such action ” (General Corporation Law, § 64), but, on the contrary, joined in the prosecution of the action. It follows that they are not entitled to avail themselves of the right to reimbursement of their expenses conferred by section 64 (supra).
The moving affidavit of Charles Trynin, on the present renewed application, makes reference to ‘ ‘ the common law rule of benefit to the corporation ” as an additional ground for the
The motion is denied insofar as it is predicated upon section 64 (supra) and denied, with leave to renew, to the extent that it is based upon common-law principles.