Opinion
Argued January 21, 1941
Decided July 29, 1941
Appeal from the Supreme Court, Appellate Division, First Department, SHIENTAG, J.
Samuel J. Levinson and Frank Weinstein for E. Flora Allen, appellant.
William S. Bennet, Victor House and Samuel H. Levinkind for Howard W. Lyon et al., appellants.
Alfred McCormack, Hoyt A. Moore, L.R. Breslin, Jr., George M. Billings and Willard A. Mitchell for respondents.
This is an action brought by stockholders to recover a money judgment against the directors of a corporation, and also to obtain certain injunctive relief against both the directors and the corporation itself. Summary judgment has been granted on motion by the corporation and by some of the individual defendants. Since the action continues as to the non-moving defendants, plaintiffs are entitled to have the corporation retained as a nominal party defendant in so far as relief is sought against the remaining individual defendants in favor of the corporation. To the extent that the plaintiffs sought relief against the corporation, and in all other respects except as noted above, the dismissal of the complaint was proper. The judgment, however, should be modified so that the corporation will be retained as a nominal party defendant in the action continuing against the non-moving individual defendants.
The judgments should be modified in accordance with this opinion and as so modified affirmed, without costs.
LEHMAN, Ch. J., LOUGHRAN, FINCH, RIPPEY, LEWIS, CONWAY and DESMOND, JJ., concur.
Judgment accordingly.