Opinion
December 27, 1961
In a proceeding by the beneficial owner of stock pursuant to section 25 of the General Corporation Law, to set aside the alleged election of directors of Irving Air Chute Co., Inc., held on April 19, 1961, and to direct a new election, the corporation and three of the directors, Clifford Bonn, Clifford C. Furnas and Frank G. Raichle, appeal from so much of an order of the Supreme Court, Queens County, entered June 7, 1961, as: (1) denied the corporation's motion to change the venue from Queens County to Erie County; (2) granted petitioner's motion to vacate the corporation's notice to take petitioner's deposition upon oral examination; (3) granted, without a hearing, petitioner's application to set aside the said election of the corporate directors; (4) ordered a new election of directors; and (5) directed that those directors who held office prior to the election should continue as such until their successors are duly elected and qualify. Order modified as follows: (1) by striking out the first decretal paragraph denying the motion for change of venue to Erie County, and substituting therefor a paragraph granting the motion and changing the venue to Erie County; (2) by striking out the second decretal paragraph granting the motion to vacate the notice to take petitioner's deposition, and by substituting therefor a paragraph denying such motion without prejudice to its renewal by petitioner at a Special Term of the Supreme Court in Erie County; (3) by striking out the third decretal paragraph granting petitioner's application to set aside the said election of the corporate directors held on April 19, 1961; the fourth decretal paragraph directing that a new election of corporate directors he held not later than 90 days after service of notice of entry of said order upon the attorneys for the appellants; and the fifth decretal paragraph directing that the corporate directors in office prior to said date shall continue in office until their successors are duly elected and qualify; and (4) by substituting for said third, fourth and fifth decretal paragraphs, a paragraph directing that the proceeding be remitted to the Supreme Court, Erie County, for a trial and for the taking of proof upon all the issues raised by the pleadings, on a date to be fixed by the Special Term of the Supreme Court in Erie County. As so modified, the order insofar as appealed from, is affirmed, without costs. The record discloses the existence of issues of fact which should be resolved only after a plenary trial at which the parties may adduce all the material and relevant proof. Under the circumstances here, we believe it was an improvident exercise of discretion not to change the venue to Erie County, the place where the corporation has its principal office and place of business and where the challenged election was held. With respect to the right to examine an adverse party before trial in a proceeding of this nature, and with respect to the time and scope of any such examination, we believe that these are procedural questions which may be best determined by the court before which the trial will be held. Nolan, P.J., Beldock, Ughetta, Pette and Brennan, JJ., concur. [ 28 Misc.2d 869.]