Aliotta v. Samperisi , 2 A.D.2d 901 ( 1956 )

In an action by a minority stockholder to compel the directors to take proceedings to dissolve appellant corporation and for incidental relief, the appeal is from an order denying appellants’ motion to dismiss the amended complaint for insufficiency, pursuant to rule 106 of the Rules of Civil Practice. Order reversed, without costs, motion granted and amended complaint dismissed. The allegations of the amended complaint are insufficient to establish a cause of action for dissolution. They fail to show that the capital of the corporation was looted by the majority stockholders, or that they are maintaining the corporate existence for some special benefit of their own at the sacrifice of the interest of the minority stockholder (Gross v. Price, 284 App. Div. 964). Neither common law nor statutory authority is shown for removal of the individual appellants as officers and directors, or for according to this minority stockholder, in his personal capacity, a cause of action for waste and for an accounting (General Corporation Law, §§ 60, 61; Matter of Burkin [Katz], 1 N Y 2d 570). In the circumstances, there is no basis for the appointment of a receiver (Purdy v. Humphrey, 192 Misc. 309, affd. 274 App. Div. 841). Wenzel, Acting P. J., Murphy, Ughetta, Hallinan and Kleinfeld, JJ., concur.