Berger v. National Architects' Bronze Co. , 160 N.Y.S. 331 ( 1916 )

Page, J.:

I concur in the reversal of the judgment and the granting of a new trial on the following grounds:

The judgment directs the defendants, including the defendant corporation, “ to account to Nathan I. Berger, the plaintiff, for the value of the property and assets and good will as a going concern, of the defendant National Architects’ Bronze Company as of November 15th, 1910, and for all damage sustained by the plaintiff Nathan I. Berger by reason of the unlawful transfer of the aforesaid property, assets and good will of the defendant National Architects’Bronze Company.”

This relief, which is the only relief granted by the judgment, the plaintiff certainly could not obtain in a derivative cause of action such as the complaint purports to set forth. In such a cause of action the directors can only be compelled to account to the corporation and to no one else, and the rights of the plaintiff as a stockholder individually are not in issue. The plaintiff in the light of certain allegations of the complaint on the other hand might have a cause of action against the defendants for breach of his contract with them to form a corporation and engage in the business of metalizing. The plaintiff and the learned trial court have apparently confused these two causes of action in one and created a result which it is impossible to sustain on any theory.

Clarke, P. J., McLaughlin, Scott and Smith, JJ., concurred.

Judgment reversed and new trial ordered, with costs to appellants to abide event. Order to be settled on notice.