Axelrod v. Darien Securities Co. ( 1950 )

Peck, P. J.

(dissenting). The allegation of the complaint that appellant Darien as dominant stockholder of Fuller caused the trustee to violate the terms of the indenture under which the certificates were issued by not reducing the mortgage indebtedness upon the surrender of the certificates and thereby placed itself in a position superior to the other security holders of Fuller would seem to state a cause of action in favor of the security holders as distinguished from the Fuller Corporation. In my opinion the order appealed from should be affirmed.

Glennon, Dore and Shientag, JJ., concur with Cohn, J.; Peck, P. J., dissents and votes to affirm, in opinion.

Order reversed, with $20 costs and disbursements to the appellant and the motion granted.