Steuer v. Hector's Tavern, Inc. , 1 A.D.2d 1003 ( 1956 )

The fact that plaintiff, as widow of a deceased stockholder, has filed her consent to accept 25 shares of stock in the defendant corporation as part payment of her elective share of the estate, does not suffice to make her either the legal or equitable owner of the stock so as to entitle her to maintain a stockholder’s derivative action in her own right (Miller v. Miller, 256 App. Div. 846, affd. 280 N. Y. 716). Nor may she sue in the right of the estate which holds the stock. The duty properly to administer the assets of the estate is vested in the executors, and no such showing of special circumstances is made (McQuaide v. Perot, 223 N. Y. 75) as would indicate that plaintiff cannot secure full and adequate relief through appropriate proceedings in the Surrogate’s Court. Orders, so far as appealed from, unanimously reversed, with $20 costs and disbursements to the appellants, the respective motions to dismiss the complaint are granted in all respects, and judgment is directed to be entered in favor of the defendants dismissing the complaint herein, with costs. Concur — Peck, P. J., Breitel, Botein, Frank and Valente, JJ. [1 Misc 2d 614.]