Opinion
October 17, 1963
Order, entered on December 27, 1962, denying plaintiff's motion for summary judgment, unanimously reversed, on the law, without costs, and the motion therefor granted. This is an action to recover possession of 42 promissory notes. The notes are payable to plaintiff. Max Miller is president and sole stockholder of the plaintiff. His wife, the defendant, is not and never was a record stockholder, director or officer of the plaintiff. The Millers are separated and a suit for a separation decree is pending. Defendant claims she and her husband are the sole stockholders and officers of the plaintiff. Also pending is an action by the defendant against her husband for conversion and misappropriation of corporate funds. The sole issue here is who is entitled to possession of the notes belonging to the corporation. Assuming the validity of the claims made by defendant, she has failed to establish any legal right to possession of the notes. We decide no other question.
Concur — Botein, P.J., Rabin, McNally, Eager and Steuer, JJ.