Opinion
October 27, 1941.
Present — Lazansky, P.J., Hagarty, Carswell, Taylor and Close, JJ.
In a stockholder's derivative action, order granting motion of the defendants-respondents for judgment dismissing the complaint as to them, pursuant to rule 107 of the Rules of Civil Practice, subdivisions 5 and 6, order and judgment unanimously affirmed, with ten dollars costs and disbursements. In the light of the appellant's admitted abandonment of the second cause of action, consideration of this appeal has been confined to the issues presented with respect to the first cause of action. The allegations therein contained do not serve to transform this cause into one the gravamen of which is actual fraud. It is simply a cause of action for breach of duty or neglect, and such cause is complete without the allegations of fraud, which are, therefore, unessential and may not serve to invoke the application of subdivision 5 of section 48 of the Civil Practice Act. ( Carr v. Thompson, 87 N.Y. 160; Brick v. Cohn-Hall-Marx Co., 276 id. 259; Pitcher v. Sutton, 238 App. Div. 291; affd., without opinion, 264 N.Y. 638; Cohen v. City Company of New York, 283 id. 112; Hearn 45 St. Corp. v. Jano, Id. 139.)