Opinion · Appellate Division of the Supreme Court of the State of New York

Goldstein v. Lightner

42 N.Y.S.2d 338

Type
Opinion
Court
Appellate Division of the Supreme Court of the State of New York
Jurisdiction
New York
Date
1943-06-22
Topic
general

Per Curiam. The second cause of action was properly dismissed. Concededly, this action is identical with that pleaded in the case of Strassburger v. Singer Mfg. Co.

Citator

UpLaw has not yet analyzed Goldstein v. Lightner. The absence of a flag is not a finding that it is good law.

Authority status
pending
Cited by
15 opinions
GOLDSTEINv.LIGHTNER,266 App. Div. 357(1943)
42 N.Y.S.2d 338
MATTHEW GOLDSTEIN, Suing on His Own Behalf and on Behalf of All Other
Stockholders of Singer Manufacturing Company Similarly Situated, Appellant,
v.MILTON C. LIGHTNER et al., Respondents.
Appellate Division of the Supreme Court of New York, First Department.
June 22, 1943.
Page 358
Appeal from Supreme Court, New York County, SHIENTAG, J.
Abraham Marcusfor appellant.Theodore Kiendlof counsel (S. Hazard Gillespie, Jr., andWilliam R. Meagherwith him on the brief;Davis Polk WardwellSunderland Kiendl, attorneys), for respondents.
Per Curiam.
The second cause of action was properly dismissed. Concededly, this action is identical with that pleaded in the case ofStrassburgerv.Singer Mfg. Co.(263 App. Div. 518). In the cited case the complaint, which sought a judgment to require this same corporate defendant, a New Jersey corporation, to pay out in dividends part of a large surplus not needed for the business of the corporation, was dismissed by this court. The basis of the ruling in theStrassburgercase was that the subject matter involved the internal management of a foreign corporation over which the courts of this State should decline jurisdiction.

However, there was no justification for the dismissal of the first cause of action, which is a derivative suit in behalf of the corporation, to recover from defendant directors of a foreign corporation damages for the breach of their fiduciary duty resulting in waste of the corporate assets. To this cause of action the doctrine offorum non conveniensdoes not apply. (Cuppyv.Ward,187 App. Div. 625,632, affd.227 N.Y. 603;Hammv.Christian Herald Corp.,236 App. Div. 639,642;Weinsteinv.Aeolian Co.,243 App. Div. 355,356.)

The judgment should accordingly be reversed, with costs, and the order modified to the extent of denying the motion to dismiss the first cause of action stated in the complaint, and as so modified affirmed.

MARTIN, P.J., UNTERMYER, DORE, COHN and CALLAHAN, JJ., concur.

Judgment unanimously reversed, with costs, and the order modified to the extent of denying the motion to dismiss the first cause of action stated in the complaint, and as so modified affirmed.Page 359