Opinion
November 7, 1956
Appeal from the Supreme Court, New York County.
The petition and the affidavits submitted in support thereof raise triable issues as to the sufficiency of the notice, dated September 24, 1955, calling a special meeting of the board of directors, the legality of the meeting ultimately held, pursuant thereto, and the election that took place thereat on October 28, 1955. The petitioners are entitled to a hearing under section 25 of the General Corporation Law at which they may offer proof of the statements contained in their petition and affidavits.
The allegations, if true, indicate that the present officers were not legally elected. In this statutory proceeding, the fact of the alleged stockholders' agreement, whether valid or not and whether executed or not, is not before the court. The only issues are the status of the record stockholders and of the directors who purported to act at the last election in question. Accordingly, the order of Special Term should be reversed and the proceeding remanded for the court to take proof of the allegations set forth in the moving papers.
Breitel, J.P., Botein, Rabin, Frank and Valente, JJ., concur.
Order unanimously reversed, with $20 costs and disbursements to the appellants, and the proceeding remanded for the court to take proof of the allegations set forth in the moving papers. Settle order on notice.