A. Rosen & Sons, Inc. v. Silverman

Per Curiam. The counterclaim is clearly insufficient. The alleged dividends sought to be recovered have not been declared. The declaration of such rests wholly within the Sound discretion of the board of directors. (Liebman v. Auto Strop Co., 241 N. Y. 427.) Such an action, moreover, would not he at law (Godley v. Crandall & Godley Co., 212 N. Y. 128; Greeff v. Equitable Life Assurance Society, 160 id. 19), and would he against the directors who are not here parties. As a defense, however, the pleading may be sustained solely upon the ground that it pleads lack of consideration. It is asserted that the stock of the plaintiff's assignor received by the defendant was given,, not for the note, but in return for the assignment by the defendant of his right, title and interest in the contracts owned by [525] Mm, together with office fixtures and good will of his business; and that the pledge of Ms stock as security for the payment of the note was, therefore, likewise without consideration. We are considering a matter of pleading merely, not the ultimate rights of the parties. The order in so far as appealed from should be modified by granting the motion to dismiss the counterclaim interposed to the first cause of action, and as so modified affirmed, without costs. Present — Finch, P. J., Merrell, Martin, O’Malley and Townley, JJ.; Finch, P. J., dissents and votes for reversal. ,