Opinion
November 10, 1943.
This is an appeal from an order and summary judgment dismissing the amended complaint as to the respondent, the Hilliard Corporation, on the ground that it does not state facts sufficient to constitute a cause of action. This is a representative stockholders' action. The allegations of the complaint must be assumed as true. There is no allegation of tender or that the Hilliard Corporation did not pay for the assets purchased or that they were obtained for an inadequate consideration or by misrepresentation. There is no allegation of unfair or unjust advantage on the part of the Hilliard Corporation. The plaintiff was obliged to allege a good cause of action on behalf of the corporation. Unless it could recover, the plaintiff could not. A careful examination of the complaint fails to show the allegation of a good cause of action in favor of Ken-Vic, Inc., one enforcible by it; it does not state a cause of action in favor of the plaintiff against the Hilliard Corporation. Order and judgment dismissing the amended complaint affirmed, with ten dollars costs and disbursements. All concur.