Isensee v. Long Island Motion Picture Co. ( 1955 )

In an action by a stockholder of defendant Long Island Motion Picture Co., Inc., on behalf of himself and all other stockholders against directors and representatives of deceased directors, and others, for alleged breach of duty, the plaintiff appeals from a judgment dismissing his complaint. Judgment unanimously affirmed, with one bill of costs. Appellant accepts the findings made by the Trial Justice but contends that as matter of law judgment should have been directed for him because it was not established that his consent to leases of a theatre, the principal asset of the corporation, for the benefit of which he sues, was fairly and in good faith obtained. The leases were made to a corporation, respondent Coy Operating Co., Inc., concededly controlled by the individual respondents or those whom they represent. We find no reversible error in the exclusion of evidence. Even though appellant had denied he gave consent to the leases, he made no offer of any portions of the books of respondent Coy as would have tended to establish that the directors had made false representations to him. The ruling of the Trial Justice permitted that to be done. While we do not agree with the conclusion of the Trial Justice that the six-year Statute of Limitations was a bar to the action, nevertheless the findings made by him as to the transactions between the parties are supported by the evidence and it cannot be said, as matter of law, that the directors failed to show that they fairly and in good faith executed the leases to respondent Coy. It is to be observed, however, that it was properly held that the specific stock ownership of the appellant was not a matter for determination in this action, and the statement in the decision as to the proof on that subject cannot be considered a determination as to appellant’s right to 52% of the stock. There was no improper exercise of the court’s discretion in its provision for reimbursement of counsel fees of the individual directors. Present — Nolan, P. J., MacCrate, Schmidt, Beldock and Murphy, JJ. [See post, p. 902.]