Opinion
May 20, 1963
In an action for an accounting and for other incidental relief, plaintiffs appeal from an order of the Supreme Court, Queens County, dated February 21, 1963, which granted defendants' motion to dismiss the complaint for insufficiency "without prejudice to whatever other rights plaintiffs may possess" (Rules Civ. Prac., rule 106, subd. 4). Order affirmed, with $10 costs and disbursements. The action is based on a written agreement between the parties, dated March 19, 1956. This agreement was a stockholders' agreement and not one for a joint venture. While plaintiffs may have a stockholders' derivative action for the alleged waste and conversion by the individual defendant, plaintiffs are not entitled to any relief in this action for an accounting on the theory of breach of the fiduciary obligation arising from a joint venture. (For related appeals, see Fromkin v. Merrall Realty, 15 A.D.2d 919, affg. 30 Misc.2d 288, motion for leave to appeal denied 11 N.Y.2d 647; Matter of Schwartz v. Travelers Hotel, 7 A.D.2d 848.) Beldock, P.J., Ughetta, Brennan, Hill and Hopkins, JJ., concur.