Citation Numbers: 190 Misc. 647
Judges: Hofstadter
Filed Date: 10/16/1947
Status: Precedential
Modified Date: 1/12/2023
Motion is made by plaintiff for judgment on the pleadings and to strike out the affirmative defenses as insufficient in law. The court must look solely to the pleadings to determine this motion. Consequently, many of the statements made in movant’s brief as to matter not in the pleadings are improper, and will be disregarded.
The denials and defenses preclude granting of the motion for judgment on the pleadings. Indeed, plaintiff in his memorandum concedes “ that certain denials in the pleadings might ordinarily be sufficient to serve as a bar to a complete determination of an application of this kind.”
The second defense alleges that plaintiff violated and continues to violate his duties as president of the corporation, and that his conduct is inimical, detrimental and injurious to the best interests of the corporation. Further, that the matter of removal of the president rests in the discretion of the board of directors, notwithstanding the stockholders’ agreement to the contrary. Stockholders in a close corporation may agree to the election of officers. (Clark v. Dodge, 269 N. Y. 410.) But in the Clark c,ase (supra), the agreement was to vote for Clark so long as he proved “ faithful, efficient and competent ”. However, it is questionable whether an agreement could be upheld which attempted to divest a board of directors of their power to discharge an unfaithful officer. In Fells v. Katz (256 N. Y. 67, 72-73) the court said: “ An agreement among stockholders whereby the directors are bereft of their power to discharge an unfaithful employee of the corporation is illegal as against public policy. * * * An agreement to continue a man as president is dependent upon his continued loyalty to the interests of the corporation.”
The third and fourth defenses that the action is premature, and that plaintiff has a remedy at law, are sufficient on their face. In any case, plaintiff would have to establish the negative of each to succeed in this action. Denials would have been
The motion is in all respects denied.
See, also, Long Park, Inc. v. Trenton-New Brunswick Theatres Co., 297 N. Y. 174.— [Rep.