From Casetext: Smarter Legal Research

Weis v. Coe

Appellate Division of the Supreme Court of New York, First Department
Feb 11, 1943
265 App. Div. 471 (N.Y. App. Div. 1943)

Opinion

February 11, 1943.

Appeal from Supreme Court, New York County, VALENTE, J.

Jacob Lippman of counsel ( Bernard Buchwald with him on the brief), for plaintiff-appellant Albert Marmorstein.

Milton Pollack of counsel ( Milton Paulson with him on the brief; Unger Pollack, attorneys), for plaintiffs-respondents Edith Weis, Flora Haas and Samuel Edelheit.

Frank W. Chambers of counsel ( Chambers, Clare Morris, attorneys for Koppers Company; Larkin, Rathbone Perry, attorneys for William Rogers Coe, William deKrafft, Robert L. Pierrepont, Clifford E. Paige, Percival J. McIntosh, Albert B. Maginnes and Central Hanover Bank and Trust Company, as Executors of Adrian H. Larkin, deceased), for defendants, respondents-appellants.

Wrenn Schmid, attorneys for William J. Wason, Jr., defendant, respondent-appellant.


This is a consolidated derivative stockholders' action. The first action was instituted in New York County by the plaintiff Edith Weis who was a stockholder of the Brooklyn Union Gas Company. In April, 1941, Flora Haas, also a stockholder of the same company, made a motion for leave to intervene as a party plaintiff in the Weis action. The motion was granted. The order entered thereon provided that Milton Paulson act as general counsel. On December 18, 1941, plaintiff Edelheit, another stockholder, instituted his action against the defendants. By an order dated February 27, 1942, the Weis and Haas actions were consolidated with the Edelheit action. This order designated the firm of Unger Pollack as general counsel for the plaintiffs in the consolidated action.

Later, on August 20, 1942, the plaintiff Albert Marmorstein instituted an action against the same defendants in Kings county. For all intents and purposes the action is similar to all the other actions.

In October, 1942, certain of the defendants in the consolidated action pending in New York county made a motion at Special Term, New York county, for an order consolidating the Marmorstein action with the actions then pending. Plaintiffs made a cross-motion for a stay of the Kings county action until the final determination of the New York county actions. The court denied the motion for further consolidation and granted the plaintiffs' motion for a stay of the Kings county action.

We are inclined to the view that all these actions should have been consolidated. In the main the issues are the same. It appears from the record that certain of the defendants had been examined before trial at great length and, furthermore, the consolidated action was about ready to proceed to trial. We see no reason for harassing the defendants by means of additional examinations before trial each time some new set of attorneys decides to institute another action.

In view of the foregoing, there is no reason for replacing the counsel who represent the various plaintiffs in the consolidated action by new general counsel. The order to be entered herein should so provide.

Under the circumstances, the order in so far as it denies the application by the defendants for a further consolidation of the Marmorstein action should be reversed and, consequently, the stay of the trial of the Kings county action will not be necessary since all these actions may be disposed of together.

For the reasons assigned the order appealed from, entered November 24, 1942, should be modified by granting the motion of the defendants for further consolidation, and denying a stay of the Kings county action, and as so modified affirmed, with twenty dollars costs and disbursements to the appealing defendants appearing by separate counsel herein. The order, entered December 2, 1942, denying resettlement should be affirmed.

MARTIN, P.J., COHN and CALLAHAN, JJ., concur; TOWNLEY, J., taking no part.

Order entered November 24, 1942, unanimously modified as indicated in opinion, and as so modified affirmed, with twenty dollars costs and disbursements to the appealing defendants appearing by separate counsel herein. Order entered December 2, 1942, denying resettlement unanimously affirmed. Settle order on notice.


Summaries of

Weis v. Coe

Appellate Division of the Supreme Court of New York, First Department
Feb 11, 1943
265 App. Div. 471 (N.Y. App. Div. 1943)
Case details for

Weis v. Coe

Case Details

Full title:EDITH WEIS, Suing on Her Own Behalf and on Behalf of All Other…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Feb 11, 1943

Citations

265 App. Div. 471 (N.Y. App. Div. 1943)
39 N.Y.S.2d 470

Citing Cases

Wald v. Lenox Ave. & 140th St. Corp.

The dissenting opinion (LEHMAN, Ch. J., p. 474) disagrees with the decision but not on the question of law…

Richman v. Felmus

In such circumstances, consolidation of the actions would clearly be warranted if it did not operate to…