Cohn v. Mishkoff-Costlow Co.

Citation175 N.E. 529,256 N.Y. 102
PartiesCOHN et al. v. MISHKOFF-COSTLOW CO., Inc.
Decision Date24 March 1931
CourtNew York Court of Appeals

OPINION TEXT STARTS HERE

Action by Benjamin E. Cohn and Meyer Lubow, copartners doing business as Cohn & Lubow, against the Schultz-Costlow Company, Incorporated, succeeded by the Mishkoff Costello Company. (From an order of the Appellate Division (229 App. Div. 174, 241 N. Y. S. 250), affirming an order of the Special Term which denied a motion to dismiss the complaint upon the pleadings, defendant appeals, and the Appellate Division certified questions.

Reversed, and motion to dismiss complaint granted, and questions answered.

The action was brought by the plaintiffs against the defendant, a foreign (Indiana) corporation. The relief prayed for in the complaint was for a judgment on behalf of the plaintiffs and of stockholders similarly situated, that the defendant be directed either to redeem shares of its stock at par value with accumulated interest, or, in the alternative, to declare a dividend out of the surplus of the defendant corporation at an equitable rate. To entitle the plaintiffs to this relief, the complaint alleged that the defendant operates stores and transacts business in a number of cities in the states of Indiana and Michigan; that the plaintiffs acquired by assignment 20 shares of the preferred stock of the defendant corporation on or about the 7th day of January, 1921, which was duly transferred on the books of the defendant, and that a new certificate of stock was issued to the plaintiffs; that the stock of the plaintiffs' assignors was ‘redeemable in any event by said company in ten years after date at par value and accumulated interest’; that no dividends have been declared by the defendant, notwithstanding that financial reports have shown the defendant to have an average surplus of $100,000, and that the average net profit of the defendant is $100,000 per annum; that the directors of the defendant corporation ‘have refused and in bad faith neglected to comply with the demand of the plaintiffs that dividends be declared or that the stock be redeemed’; and that plaintiffs have no remedy at law.

The following questions were certified:

‘1. Does it appear upon the face of the complaint that the court has jurisdiction of the subject of the action?

‘2. Does the complaint state facts sufficient to constitute a cause of action?’

Appeal from Supreme Court, Appellate Division, First department.

Henry Hofheimer, Milton Mansbach, and Louis J. Paley, all of New York City, for appellant.

Frank E. Mowve and Philip I. Schick, of New York City, for respondents.

PER CURIAM.

The action is brought by a stockholder against the defendant, a foreign...

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25 cases
  • Rogers v. Guaranty Trust Co of New York
    • United States
    • United States Supreme Court
    • 23 Enero 1933
    ...to the courts of the state of the domicile as appropriate tribunals for the determination of the particular case. Cohn v. Mishkoff-Costlow Co., 256 N.Y. 102, 105, 175 N.E. 529; Travis v. Knox Terpezone Co., 15 N.Y. 259, 263, 109 N.E. 250, L.R.A. 1916A, 542, Ann. Cas. 1917A, 387; Kimball v. ......
  • Ellis v. Mutual Life Ins. Co. of New York, 6 Div. 327.
    • United States
    • Supreme Court of Alabama
    • 9 Febrero 1939
    ...... the state of the domicile as appropriate tribunals for the. determination of the particular case. Cohn v. Mishkoff-Costello Co., 256 N.Y. 102, 105, 175 N.E. 529;. Travis v. Knox Terpezone Co., 215 N.Y. 259, 263, 109. N.E. 250, L.R.A.1916A, 542, ......
  • Comer v. Titan Tool, Inc., 93 Civ. 1066 (RWS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 17 Febrero 1995
    ...Cream of Wheat Co. v. County of Grand Forks, 253 U.S. 325, 328, 40 S.Ct. 558, 559, 64 L.Ed. 931 (1920); Cohn v. Mishkoff-Costlow Co., 256 N.Y. 102, 105, 175 N.E. 529 (N.Y.1931); Nothiger v. Corroon & Reynolds Corp., 266 A.D. 299, 42 N.Y.S.2d 103, 104-05 (N.Y.Sup.Ct.1943) (treating state of ......
  • Comer v. Titan Tool, Inc., 93 Civ. 1066 (RWS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 23 Junio 1995
    ...652 (1933); Cream of Wheat Co. v. Grand Forks, 253 U.S. 325, 328, 40 S.Ct. 558, 559, 64 L.Ed. 931 (1920); Cohn v. Mishkoff-Costlow Co., 256 N.Y. 102, 105, 175 N.E. 529 (1931); Nothiger v. Corroon & Reynolds Corp., 266 A.D. 299, 42 N.Y.S.2d 103, 104-05 (1943) (treating state of incorporation......
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