Opinion
December 3, 1937.
Appeal from Supreme Court of New York County.
Samuel W. Bass of counsel [ Rubinstein Bass, attorneys], for the appellant.
H.H. Nordlinger of counsel [ David B. Lefkowitz with him on the brief; Nordlinger, Riegelman Cooper, attorneys], for the respondents.
Present — MARTIN, P.J. GLENNON, UNTERMYER, DORE and CALLAHAN, JJ.
The contract made in September, 1936, whereby it was agreed, as alleged in the first defense, that the defendant Troub and one Benjamin Sohon, the two stockholders of the plaintiff, would at some time in the future sever their relations as stockholders, officers and directors of the plaintiff and that one would purchase the other's stock, did not relieve the defendant Troub, previous to the sale of the stock and his resignation on November 23, 1936, from the duty of abstaining from conduct detrimental to the corporation. The first affirmative defense is, therefore, insufficient in law.
The third affirmative defense is likewise insufficient. It contains no allegations indicating any disregard of the corporate entity, and alleges merely "the intent" of the two stockholders in entering into the agreement for the purchase of the stock. Since the action is by the corporation and Benjamin Sohon is not a party, effect cannot be given to "the intent" of parties to a contract in which the corporation was not directly concerned.
The order should be modified by striking out the first and third affirmative defenses, with leave to the defendants to serve an amended answer, and as so modified affirmed, without costs.
Order unanimously modified by striking out the first and third affirmative defenses, and as so modified affirmed, without costs, with leave to the defendants to serve an amended answer within ten days after service of order with notice of entry thereof.