Opinion
June 24, 1958
Order unanimously reversed on the law and facts and in the discretion of the court, with $20 costs and disbursements to the appellant and the application for counsel fees is denied, with $10 costs. No reference was necessary to determine whether any substantial benefit had been conferred on the corporation since from the papers it appears that the transaction complained of has not only resulted in a profit to the corporation but also has been adjudicated in a companion action in the Federal court to have been a proper exercise of judgment on the part of the directors. We find no basis for charging the corporation with the expenses of this action in view of the finding in the Federal court action that the investment attacked was made for a bona fide business purpose. Under the circumstances of this case the attorney is not entitled to any counsel fee. Moreover, if any claim existed for payment of a fee it should have been advanced in the Federal court action even though the instant plaintiff was not a party to that action. The Federal court had jurisdiction to pass on the question at that time.
Concur — Breitel, J.P., Frank, Valente, Stevens and Bergan, JJ.