Opinion
December 21, 1942.
Appeal from Supreme Court, New York County.
Present — Martin, P.J., Townley, Glennon, Untermyer and Dore, JJ.; Untermyer, J., concurs except that he votes to dismiss the complaint as to the preferred stockholders upon the ground that the action has abated as to them.
Order modified by denying the motion to fix the status of the first preferred stockholders without prejudice to renewal at trial and striking out the injunction therein, and, as so modified affirmed without costs. Settle order on notice.
The cause of action belongs to the corporation and is not abated, but on this record Special Term's declaration of the status of the preferred stockholder plaintiffs was premature and should await determination after disclosure of the facts at trial which now has been set for the December, 1942 term.
The court has jurisdiction of the defendants including Industrial Finance Corporation; the injunction granted was unnecessary and should be denied.
The order appealed from should be modified by denying the motion to fix the status of the first preferred stockholders without prejudice to renewal at trial and striking out the injunction therein, and, as so modified, affirmed without costs.