Opinion
November 15, 1943.
In a stockholders' derivative action certain defendants appeal from an order denying their motion for judgment on the pleadings dismissing the complaint or, in the alternative, for a stay of the action for the duration of the present war. Order modified on the law so as to provide that the motion be granted to the extent of staying the further prosecution of the action by the plaintiffs during the continuation of the present war. As thus modified, the order is affirmed, with ten dollars costs and disbursements to appellants. Defendant Chemacid Societe Anonyme, concededly upon the record, a nonresident alien enemy within the purview of the Trading With the Enemy Act (U.S. Code, tit. 50, Appendix, § 1 et seq.) is in reality the plaintiff, the stockholders being only nominal plaintiffs. ( Potter v. Walker, 252 App. Div. 244, affd. 276 N.Y. 15; Monahan v. Kenny, 248 App. Div. 159; Continental Securities Co. v. Belmont, 206 N.Y. 7, 13; Holmes v. Camp, 180 App. Div. 409. ) It is well settled that a nonresident alien enemy cannot, during the war, prosecute an action in our courts. ( Matter of Kawato, 317 U.S. 69; Matter of Colonna, 314 U.S. 510; Rothbarth v. Herzfeld, 179 App. Div. 865, affd. 223 N.Y. 578; Cohn v. Gismond Co., 203 App. Div. 453; H.P. Drewry, S.A.R.L., v. Onassis, 266 App. Div. 292.) Since it appears that this action was commenced prior to the declaration of war by the United States, the appropriate relief to be granted is to suspend the prosecution of the action until the cessation of hostilities, or until such time as Belgium is not occupied by the military and naval forces of Germany. ( Rothbarth v. Herzfeld, supra.) Close, P.J., Carswell, Johnston, Adel and Taylor, JJ., concur. [ 180 Misc. 785.]