Elbogen v. Gerbereux Flynn Co.

Per Curiam:

The order appealed from must be reversed. The defendants Gerbereux and others, owners of a majority of shares of the Gerbereux Flynn Company were authorized by a provision of the statute existing at the time of the incorporation of the company and now in force to take the action prescribed by such statute for the dissolution of that company. The plaintiffs took their shares of stock subject to all the provisions of law relating to the dissolution of such a corporation, and, further than that, they assented to, and one of them introduced at a directors’ meeting, the resolution favoring a dissolution. The complaint in this action charges fraud on the part of the individual defendants and misrepresentation on the part of Eugene Gerbereux, and one of the plaintiffs swears that he assented to the resolution favoring the dissolution of the company in consequence of some moral coercion or duress exerted by Eugene Ger bereux. We cannot find anything satisfactory in the affidavits to establish the allegations of fraud or duress. All that there is rests upon the assertion of the plaintiffs and a suggestion of a suspicion that the individual defendants are seeking to dissolve the corporation in order that the defendant Eugene Gerbereux may, after a dissolution, purchase at a forced sale and for less than their worth the assets of the corporation, and that thus the value of the plaintiffs’ shares may be depreciated. Everything that would constitute fraud and every allegation of the complaint and every statement in the affidavits of the plaintiffs suggesting or indicating fraud is positively denied by the individual defendants, and there are no circumstances proven which should induce us to give greater weight to the plaintiffs’ assertion than, to the defendants’ denials. These defendants had a clear right under the statute to take the course they pursued, and while a court of equity will restrain contemplated acts in furtherance of fraud, yet this case is so barren of proof showing fraud that the injuuction cannot be maintained. The order must be reversed, with ten dollars costs and disbursements, and the motion for an injunction denied, with ten dollars costs. Present—Van Brunt, P. J., Rumsey, Patterson, O’Brien and McLaughlin, JJ.