Opinion
June 4, 1945.
Present — Close, P.J., Hagarty, Johnston, Lewis and Aldrich, JJ. [ 182 Misc. 523.]
In a stockholder's action the individual defendants appeal from the interlocutory and the final judgment herein; and a cross appeal is taken by the plaintiff and his attorney from the final judgment insofar as it fixes and allows an amount for legal services in the prosecution of the action and denies their application to assess such fees and the disbursements against the individual defendants. Final judgment modified on the law and the facts by striking out the provision thereof fixing at a contingent sum the allowance to plaintiff Masholie for services rendered by his attorney, and by providing instead that said plaintiff shall have the right to apply further for such allowance upon establishing the benefits derived by the corporations from such services. As thus modified, the judgment insofar as appealed from is unanimously affirmed, with costs to plaintiff Masholie. payable by appellants Daniel J. and Helen N. Salvator. The statement of plaintiff Masholie's counsel indicates that there is a negligible likelihood that the judgments against the individual defendants will be wholly or substantially collected. The fixation of the allowance of said plaintiff's attorney should, therefore, be deferred until it can be established that the corporations have benefited by the services. ( Drivas v. Lekas, 265 App. Div. 1003.) Appeals from interlocutory judgment dismissed, without costs.