Opinion
March 28, 1949.
Present — Johnston, Acting P.J., Adel, Sneed, Wenzel and MacCrate, JJ. [See post, p. 835.]
In this consolidated derivative stockholders' action predicated upon alleged wrongs by respondents against the Fisk Rubber Corporation, plaintiffs, in pursuance of the determination of the Court of Appeals in Cohen v. Dana, one of the actions consolidated ( 287 N.Y. 405, 410-411), that plaintiff be given "full opportunity either to bring in Fisk as a party defendant or to have an adjudication duly made by the court at its domicile, or thereafter to show in this action that under the circumstances in the case at bar Fisk was not an indispensable party to this action", applied by bill of complaint in the Court of Chancery of the State of Delaware for the appointment of a receiver of the Fisk Rubber Corporation. In that bill of complaint plaintiffs alleged the same facts alleged in their consolidated amended complaint in this action as constituting the wrongs perpetrated by respondents against that corporation, and made that corporation the sole party defendant. The corporation appeared in the Delaware action and by answer denied such allegations of wrong against it. After a full trial of the issues so raised, the Delaware court held that plaintiffs' allegations had not been proved, dismissed their bill of complaint on the merits, and denied their application for the appointment of a receiver. No appeal was taken from the decree thereupon entered and time to appeal has expired. Respondents thereafter, by amended answers in this consolidated action, affirmatively pleaded the judgment entered in the Delaware court as res judicata in bar of this action. From an order sustaining respondents' pleas of the judgment of the Delaware court in bar of this action, granting respondents' motion to dismiss the consolidated amended complaint and granting summary judgment of dismissal; and from the judgment of dismissal thereupon entered, plaintiffs appeal. Order granting respondents' motion to dismiss the consolidated amended complaint and directing summary judgment of dismissal, and the judgment of dismissal thereupon entered, unanimously affirmed, with one bill of $10 costs and disbursements to respondents. ( Bigelow v. Old Dominion Copper Co., 225 U.S. 111, 127; Bannon v. Bannon, 270 N.Y. 484, 489; Good Health Dairy Products Corp. v. Emery, 275 N.Y. 14; Featherston v. President, Directors Co. of Newburgh Cochecton Turnpike Road, 71 Hun 109, 111; Haverhill v. International Ry. Co., 217 App. Div. 521, 522, affd. 244 N.Y. 582; Eissing Chemical Co. v. People's Nat. Bank of Brooklyn, 205 App. Div. 89, 91, affd. 237 N.Y. 532.)