Opinion
January 11, 1943.
Present — Hagarty, Carswell, Adel, Taylor and Close, JJ.
Consolidated actions by plaintiff as an individual and as a stockholder of Lekas Drivas, Inc. Fraud, conspiracy, and breach of fiduciary duties are charged against the respondents-appellants Lekas and Katsoris. Order dated February 7, 1942, and resettled judgment (one paper) modified on the law and the facts as follows: (I) By striking out the first ordering paragraph. (II) By adding to the $840 item in paragraph 2(a) $230.02 as interest. (III) By adding interest from June 30, 1935, to the $750 item in paragraph 2(b). (IV) By adding interest from May 31, 1937, to the $1,000 item in paragraph 2(c). (V) By adding interest from the date of payment of the $250 and $50 items in paragraph 5(b) and (c). (VI) By striking out paragraphs 3(b), 4, 5(a), 6, 7, 16, 17, 19 and 21. (VII) By striking the words "Nicholas C. Lekas and Nicholas Katsoris and" from paragraph 20; and by substituting the word "defendant" for the word "defendants" in two places in the same paragraph. As thus modified, the order and resettled judgment, in so far as appealed from, is unanimously affirmed, without costs. Appeals from the original judgment dated January 6, 1942, dismissed, without costs. Order denying plaintiff's motion for an allowance in the representative action and for an additional allowance in the personal action unanimously affirmed, without costs. With respect to paragraph 3(b) of the order and resettled judgment, it must be presumed that the corporate officers authorized the expenditure for corporate purposes, and the evidence fails to overcome the presumption. It was not proper to award plaintiff the expenses of the mandamus proceeding. Plaintiff's employment contract calls for a specific employment, and it is not proper for the court to rewrite the terms of the contract. The court should not restrict the officers and directors in their conduct of the business by limiting the amount for which they may enter into commitments or contracts. It was not proper to award plaintiff damages in the sum of $3,000. Section 61-a of the General Corporation Law provides for allowances to be made by the court for expenses and attorneys fees. Reasonable construction of this section suggests as a basis for these allowances a successful prosecution resulting in a substantial benefit to the corporation. In the opinion of the court, the proof in this record does not establish such benefit, and the motion was therefore properly denied. With respect to plaintiff's requests to find, the following findings which were made by the trial court are reversed and denied: 98, 99, 177C(2), 177J(12), 177M(7), 177N(1), 180, 186 and 195. Finding 127 is modified by striking out the words "in bad faith" and substituting in place thereof the word "refused." In all other respects the trial court's action on plaintiff's requests is approved. With respect to the requests to find of defendants Nicholas Katsoris and Nicholas C. Lekas, the following requests which were refused by the trial court are hereby found: 19, 21, 58, 97, 104 and 111. In all other respects the trial court's actions on these defendants' requests to find, including their additional or second set of requests to find, are approved. All the findings made at the request of defendants Blackwell, Tyrrell and McMahon are approved; and in addition number 6, which apparently was not passed upon, is found. All the findings made at the request of the defendants Lewis and Schack are approved; and in addition number 23, which apparently was not passed upon, is found. With respect to the requests to find of defendants Christ Staikos, number 40, which was found by the trial court, is reversed and denied. Number 39 is modified by striking out the words "wrongfully" and "large." In all other respects the trial court's action on this defendants' requests is approved.