Opinion
December 23, 1938.
Appeal from Supreme Court of New York County.
Harry Mabel of counsel [ Goodman Mabel, attorneys], for the appellant.
Abraham J. Halprin of counsel [ Irving Barry with him on the brief; Abraham J. Halprin, attorney], for the respondent.
Present — MARTIN, P.J., O'MALLEY, TOWNLEY, DORE and COHN, JJ.
The first defense which avers that plaintiff participated as director of the corporation in the wrongful acts complained of; that the suit (a representative stockholder's action) was instituted at the direction of the wrongdoers and in collusion with them; that plaintiff's interests are adverse to those of the corporation and that the action is not prosecuted in good faith for the benefit of himself and the other stockholders of the corporation similarly situated, is a good and sufficient defense to the cause of action set forth in this case. ( Wile v. Burns Bros., 239 App. Div. 59, 64 et seq.)
Though the facts alleged in the third defense may be established upon a trial under the denials contained in appellant's answer, we think that this defense was properly stricken out as insufficient.
The order should, accordingly, be modified in so far as it directs that the first defense be stricken out, and the motion to strike out said defense denied, and, as so modified, affirmed, with twenty dollars costs and disbursements to appellant, with leave to said defendant to serve an amended answer within ten days after service of a copy of the order to be entered hereon, with notice of entry thereof, upon payment of the ten dollars motion costs awarded by the court at Special Term.
Order unanimously modified in so far as it directs that the first defense be stricken out, and the motion to strike out said defense denied, and as so modified affirmed, with twenty dollars costs and disbursements to the appellant, with leave to said defendant-appellant to serve an amended answer within ten days after service of order upon payment of the ten dollars motion costs awarded by the court at Special Term.