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Lieber v. Blue Haven Successors

Supreme Court, Appellate Term, Second Department
May 19, 1955
208 Misc. 76 (N.Y. App. Term 1955)

Opinion

May 19, 1955.

Appeal from the Municipal Court of the City of New York, Borough of Queens, TOBIAS, J.

Charles Weishaupt for appellant.

Charles Glatzer for respondent.


Plaintiff, a stockholder of defendant corporation, brought this action to recover a penalty under section 77 of the Stock Corporation Law for neglect or refusal to furnish a statement of defendant's affairs. The statute requires that a written request for such a statement be made "to the treasurer or other fiscal officer" of the corporation, and further provides that "the treasurer shall make such statement". Since the statute is of a penal character, it must be strictly construed and applied. The complaint alleges the service of a demand upon defendant's president and sole officer who was "in complete charge and control of the corporate funds of the defendant, and was its only fiscal officer." It is further alleged in substance that the defendant accepted the request for a statement, without objection, and thereafter entered into stipulations extending its time to comply with the statute. These allegations do not meet the statutory requirements, which cannot be made the subject of an estoppel or waiver. The complaint, therefore, should have been dismissed on the ground that no cause of action is stated.

The order should be unanimously reversed, on the law, with $10 costs to defendant, and motion to dismiss plaintiff's complaint for insufficiency granted.

KLEINFELD, HART and ARKWRIGHT, JJ., concur.

Order reversed, etc.


Summaries of

Lieber v. Blue Haven Successors

Supreme Court, Appellate Term, Second Department
May 19, 1955
208 Misc. 76 (N.Y. App. Term 1955)
Case details for

Lieber v. Blue Haven Successors

Case Details

Full title:MOE LIEBER, Respondent, v. BLUE HAVEN SUCCESSORS, INC., Appellant

Court:Supreme Court, Appellate Term, Second Department

Date published: May 19, 1955

Citations

208 Misc. 76 (N.Y. App. Term 1955)
144 N.Y.S.2d 434