284 A.D. 829 | N.Y. App. Div. | 1954
Orders modified in accordance with the memorandum and as modified affirmed, without costs of this appeal to any party. Memorandum: We agree with the disposition made by Special Term in relation to the first, second, and third causes of action. As to the first and third causes we think no cause of action is stated. We are not concluded by the fact that we modified the temporary injunction order. (Walker Memorial Baptist Church v. Saunders, 285 N. Y. 462.) The fourth cause of action is an action for the benefit of the plaintiff individually. The motion to dismiss this cause of action was on the ground that it did not state facts sufficient to constitute a cause of action. It was dismissed by Special Term on the ground that a stockholder’s derivative action may not be joined with an action for individual damages. Under the present practice we see no impediment to such joinder in one complaint. (Civ. Prac. Act, § 258; Hirshhorn v. Hirshhorn, 278 App. Div. 1006; De Baryshe v. Kidwell, 282 App. Div. 1104.) Inasmuch as the fourth cause of action incorporates by reference many allegations set forth in the preceding causes which are irrelevant to the fourth cause, we think the orders appealed from should be modified by granting permission to the plaintiff to plead over as to the fourth cause of action within twenty days after service of the order herein with notice of entry. All concur. (Appeal from an order and resettled order granting defendants’ motion to dismiss plaintiff’s first, third and fourth causes of action in the amended complaint, and directing plaintiff to plead over as to his second cause of action.) Present — MeCurn, P. J., Kimball, Piper, Wheeler and Van Duser, JJ.