Opinion
Argued March 4, 1925
Decided April 7, 1925
Appeal from the Supreme Court, Appellate Division, Second Department.
John W. Hogan, Paul Bonynge and Wendell P. Barker for plaintiff, appellant.
Mortimer W. Byers for trustees, defendants, appellants.
William H. Harding and Meier Steinbrink for Northern Insurance Company of Moscow et al., defendants, appellants.
Albert Ottinger, Attorney-General ( Edward G. Griffin of counsel), for respondent.
Frederick B. Campbell and Paul C. Whipp, amici curiae.
Plaintiff as managing director for Northern Insurance Company of Moscow is not the real party in interest and may not maintain this action as such. ( Spencer v. Standard C. M. Corp., 237 N.Y. 479.)
As a stockholder suing in a representative capacity in the right of the corporation he has not made out a cause of action since no waste of corporate assets is threatened. ( Howes v. City of Oakland, 104 U.S. 450.)
The judgment should be affirmed, with costs.
HISCOCK, Ch. J., CARDOZO, POUND, McLAUGHLIN and LEHMAN, JJ., concur; CRANE, J., dissents; ANDREWS, J., not voting.
Judgment affirmed.