Pulsch v. Nyack Express Co. , 300 N.Y.S. 634 ( 1937 )

Order denying motion to vacate notice of examination before trial and directing the production of records, books and accounts affirmed, with ten dollars costs and disbursements; examination to proceed on five days’ notice at the place and hour stated in the order. No opinion. Carswell, Davis and Adel, JJ., concur; Hagarty, J., with whom Johnston, J., concurs, dissents and votes to reverse, with the following memorandum: This is an action in equity to compel the defendants to account to the plaintiffs for the conduct of the business of the defendant corporation and for all moneys received and disbursements made subsequent to the 1st day of April, 1931, and to declare dividends of the earnings of the corporation, and that the plaintiffs receive what may be found due to them. The complaint does not state facts sufficient to constitute a cause of action for the relief sought. Not only should the action be a derivative one, brought by the plaintiffs for the benefit of the corporation, but, for the purpose of procuring a declaration of dividends, the directors are necessary and indispensable parties. Under such circumstances, an examination before trial is not justified. (Cash v. American Specialty Tailoring Co., 157 App. Div. 729. See, also, Jones v. Van Heusen Charles Co., 230 id. 694, and cases therein cited.)