Gearing v. Kelly , 222 N.Y.S.2d 479 ( 1961 )

In a stockholder’s derivative action a plaintiff must show both special circumstances and factual evidence to support his allegations (Brush v. Brittain, 10 A D 2d 574). No special circumstances are shown. While the physical condition of Kelly, Sr., might warrant perpetuation of his testimony, it also prevents him from being examined. Thus it cannot constitute a special circumstance. In all but one of the items allowed the allegations are unsupported by any factual evidence. Concur—Rabin, J. P., McNally, Stevens and Steuer, J J.;