Feldmeier v. Webster

CourtUnited States State Supreme Court (New York)
Writing for the CourtSULLIVAN
Citation208 Misc. 996,145 N.Y.S.2d 365
Decision Date24 October 1955
PartiesRobert H. FELDMEIER as a Stockholder of Sanitary Processing Equipment Corporation, Plaintiff, v. Eric WEBSTER, Sanitary Processing Equipment Corporation and Eastern Dairy Equipment Co., Inc., Defendants.

Page 365

145 N.Y.S.2d 365
208 Misc. 996
Robert H. FELDMEIER as a Stockholder of Sanitary Processing
Equipment Corporation, Plaintiff,
v.
Eric WEBSTER, Sanitary Processing Equipment Corporation and
Eastern Dairy Equipment Co., Inc., Defendants.
Supreme Court, Onondaga County.
Oct. 24, 1955.

Page 366

Gray, Norem, Van Lengen & Van Lengen, George Van Lengen, Syracuse, for plaintiff.

Harry L. Marcus, Brooklyn, Herbert L. Maltinsky, Brooklyn, of counsel, for defendants.

SULLIVAN, Justice.

This is a motion by the defendants for an order to change the venue of this action from Onondaga County to Queens County.

The suit is a stockholder's derivative action and it is brought pursuant to Section 60 of the General Corporation Law.

It is the contention of the defendants that the real plaintiff is Sanitary Processing Equipment Corporation and not Robert Feldmeier, a stockholder, and therefore, the action belongs to the corporation and not to the stockholders individually or collectively. Carruthers v. Jack Waite Mining Co., 306 N.Y. 136, at page 140, 116 N.E.2d 286, at page 288.

Hence, it is argued that the residence of the corporation, which is Queens County, determines the venue of the action.

However, the cited case holds that the stockholder is a plaintiff, altho only a nominal one, and that an existing corporation is an indispensable party to the action. In the instant case, the [208 Misc. 997] corporation is not prosecuting the action. It is a defendant. The stockholder is prosecuting it. He is the plaintiff. Civil Practice Act, § 191.

As such, he is, of course, a party.

'Parties, in the larger legal sense, are all persons having a right to control the proceedings to make defense, to adduce and cross-examine witnesses, and to appeal from the decision, if an appeal lies.' Knickerbocker Trust Co. v. Tarrytown, W. P. & M. R. Co., 139 App.Div. 305, at page 308, 123 N.Y.S. 954, at page 956.

The stockholder in a derivative action comes within this category.

Civil Practice Act, § 182, provides, in part:

'An action in the supreme court * * * must be tried in the county in which one of the parties resided at the commencement thereof.'

The stockholder resides in Onondaga County. Since he is a party, nominal or otherwise, the venue of this action is laid in the proper county.

Page 367

Aside from the foregoing, it may be well to consider the several statutes pertaining to actions against officers of a corporation for misconduct which is the...

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5 practice notes
  • Blum v. Gleitsman
    • United States
    • United States State Supreme Court (New York)
    • June 9, 1960
    ...suit as a director. For the purpose of venue the residence of a stockholder in a derivation action is controlling (Feldmeier v. Webster, 208 Misc. 996, 145 N.Y.S.2d 365, affirmed 1 A.D.2d 938, 150 N.Y.S.2d 581). Defendants rely [25 Misc.2d 743] on Tenney v. Rosenthal, 6 N.Y.2d 204, 189 N.Y.......
  • Shami v. F.O.A.N., Inc.
    • United States
    • United States State Supreme Court (New York)
    • November 8, 2010
    ...see also Casavecchia v. Mizrahi, 2010 N.Y. Slip Op. 32234(U), *6, 2010 WL 3384620 [Sup. Ct., Nassau County 2010], Feldmeier v. Webster, 208 Misc. 996, 996-997, 145 N.Y.S.2d 365 [Sup. Ct., Onondaga 1955] ). Defendants' assertion that the venue must be changed to the county where the Property......
  • Tashenberg v. Breslin
    • United States
    • New York Supreme Court Appellate Division
    • July 9, 1982
    ...as a stockholder, director and officer, his county of residence is proper for purposes of venue (CPLR 503, subd. Feldmeier v. Webster, 208 Misc. 996, 145 N.Y.S.2d 365, affd. 1 A.D.2d 938, 150 N.Y.S.2d 581; Blum v. Gleitsman, 25 Misc.2d 740, 203 N.Y.S.2d 38). Accordingly, since this matter i......
  • Shami v. F.O.A.N. Inc, 13733/10
    • United States
    • United States State Supreme Court (New York)
    • November 8, 2010
    ...New York Special Term 1960]; see also Casavecchia v Mizrahi, 2010 NY Slip Op 32234U, *6 [Sup Ct, Nassau County 2010], Feldmeier v Webster, 208 Misc 996, 996-997 [Sup Ct, Onondaga 1955]). Defendants' assertion that the venue must be changed to the county where the Property is located is also......
  • Request a trial to view additional results
5 cases
  • Blum v. Gleitsman
    • United States
    • United States State Supreme Court (New York)
    • June 9, 1960
    ...suit as a director. For the purpose of venue the residence of a stockholder in a derivation action is controlling (Feldmeier v. Webster, 208 Misc. 996, 145 N.Y.S.2d 365, affirmed 1 A.D.2d 938, 150 N.Y.S.2d 581). Defendants rely [25 Misc.2d 743] on Tenney v. Rosenthal, 6 N.Y.2d 204, 189 N.Y.......
  • Shami v. F.O.A.N., Inc.
    • United States
    • United States State Supreme Court (New York)
    • November 8, 2010
    ...see also Casavecchia v. Mizrahi, 2010 N.Y. Slip Op. 32234(U), *6, 2010 WL 3384620 [Sup. Ct., Nassau County 2010], Feldmeier v. Webster, 208 Misc. 996, 996-997, 145 N.Y.S.2d 365 [Sup. Ct., Onondaga 1955] ). Defendants' assertion that the venue must be changed to the county where the Property......
  • Tashenberg v. Breslin
    • United States
    • New York Supreme Court Appellate Division
    • July 9, 1982
    ...as a stockholder, director and officer, his county of residence is proper for purposes of venue (CPLR 503, subd. Feldmeier v. Webster, 208 Misc. 996, 145 N.Y.S.2d 365, affd. 1 A.D.2d 938, 150 N.Y.S.2d 581; Blum v. Gleitsman, 25 Misc.2d 740, 203 N.Y.S.2d 38). Accordingly, since this matter i......
  • Shami v. F.O.A.N. Inc, 13733/10
    • United States
    • United States State Supreme Court (New York)
    • November 8, 2010
    ...New York Special Term 1960]; see also Casavecchia v Mizrahi, 2010 NY Slip Op 32234U, *6 [Sup Ct, Nassau County 2010], Feldmeier v Webster, 208 Misc 996, 996-997 [Sup Ct, Onondaga 1955]). Defendants' assertion that the venue must be changed to the county where the Property is located is also......
  • Request a trial to view additional results

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