Van Aalten v. Mack , 9 A.D.2d 648 ( 1959 )

Order granting plaintiff’s motion to discontinue stockholders’ derivative action, insofar as appealed from, unanimously affirmed, without costs to any party. Since the proceedings in this action had never developed intensively, discretion warrants the granting of permission to plaintiffs to voluntarily discontinue the action, albeit with prejudice to the particular plaintiffs. In a proper case, however, in which the proceedings were more extensively developed, the court not only has the power, but might well exercise it, to require a further condition to voluntary discontinuance. Thus, in order to give harassed defendants, if that be the case, the effect of res judicata as to all stockholders, the court could require appropriate notice to be given to all stockholders with opportunity to intervene and carry on the prosecution of the action before granting the discontinuance to the particular plaintiffs. (See Rules of Civ. Prae., rule 301, subd. 2.) Concur — Breitel, J. P., Rabin, M. M. Frank, Yalente and Stevens, JJ. [17 Misc 2d 828.]