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ROSENFELD v. FAIRCHILD ENGINE & AIRPLANE CORP.

309 N.Y. 168 (1955)

William Rosenfeld, on Behalf of Himself and All Other Stockholders of Fairchild Engine and Airplane Corporation, Similarly Situated, Appellant, v. Fairchild Engine and Airplane Corporation et al., Respondents, et al., Defendants.

Court of Appeals of the State of New York.

Decided July 8, 1955

Attorney(s) appearing for the Case

Abraham Marcus, Alan J. Stein and William Rosenfeld, in person, for William Rosenfeld, appellant.

Harold R. Medina, Jr., for O. Parker McComas and another, respondents.

Jacquelin A. Swords and William K. Zinke for Sherman M. Fairchild, respondent.

Samuel J. Silverman for James A. Allis, respondent.

CONWAY, Ch. J., and BURKE, J., concur with FROESSEL, J.; DESMOND, J., concurs in part in a separate opinion; VAN VOORHIS, J., dissents in an opinion in which DYE and FULD, JJ., concur.

FROESSEL, J.

In a stockholder's derivative action brought by plaintiff, an attorney, who owns 25 out of the company's over 2,300,000 shares, he seeks to compel the return of $261,522, paid out of the corporate treasury to reimburse both sides in a proxy contest for their expenses. The Appellate Division has unanimously affirmed a judgment of an Official Referee dismissing plaintiff's complaint on the merits, and...

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