Garlen v. Green Mansions, Inc.

• Decision Date: 27 November 1959
• Citation: 193 N.Y.S.2d 116,9 A.D.2d 760
• Parties: Lena B. GARLEN, individually and as a stockholder of Green Mansions, Inc., suing on behalf of herself and all other stockholders of Green Mansions, Inc., similarly situated, and in the right and interest of Green Mansions, Inc., Plaintiff-Appellant, v. GREEN MANSIONS, INC., Defendant-Respondent, and Samuel Garlen and Elliott W. Isaacson, Defendants.
• Court: New York Supreme Court — Appellate Division

Page 116

193 N.Y.S.2d 116

9 A.D.2d 760

Lena B. GARLEN, individually and as a stockholder of Green

Mansions, Inc., suing on behalf of herself and all other

stockholders of Green Mansions, Inc., similarly situated, and in the right and interest of Green Mansions, Inc., Plaintiff-Appellant, v. GREEN MANSIONS, INC., Defendant-Respondent, and Samuel

Garlen and Elliott W. Isaacson, Defendants.

Supreme Court, Appellate Division, First Department.

Nov. 27, 1959.

A. Blank, New York City, for plaintiff-appellant.

E. W. Isaacson, New York City, for defendant-respondent. Before BOTEIN, P. J., and BREITEL, M. M. FRANK, VALENTE and STEVENS, JJ.

PER CURIAM.

Order of Special Term reversed on the law and on the facts and the motion to strike the answer of the corporate defendant and the appearance of counsel in its behalf is granted with leave, in the exercise of discretion, to the said corporation to appear, answer and otherwise defend by independent counsel if it is so advised within 20 days from the entry of the order, with $20 costs and disbursements to the appellant. While a corporation is usually a passive litigant in a stockholder's derivative action, it may well be that the equitable relief sought in the complaint requires an appearance and answer by the corporate defendant. However, such appearance must be by independent counsel whose interests will not conflict with those of the individual defendant.