Phillips v. Equitable Life Assurance Society of United States , 55 N.Y. St. Rep. 298 ( 1893 )

INGRAHAM, J.

I think the motion made by the plaintiff should not be granted, because no cause of action in favor of this plaintiff against this defendant is disclosed in the motion papers. The plaintiff is a stockholder in the defendant corporation, and it would appear that the object of the action is to compel the defendant, the corporation, to disclose certain alleged irregularities by which it is claimed the trustees have robbed the corporation. The trustees are not parties defendant, and, if the plaintiff does establish these facts, he would have no remedy against the corporation which has been robbed. It seems to me to be useless to prolong such a litigation. The plaintiff does not allege that he is in a position to serve a complaint, and does not deny that the time has expired in which he was bound to serve a complaint in this action. He seeks, however, to compel the defendant to accept a notice of appeal from an order denying his motion for a discovery' when he was in default in the service of the complaint, and when the defendant was entitled to an order dismissing the action. The defendant also moves to dismiss the action for failure to serve the complaint, and that motion, I think, should be granted, with $10 to defendant.