Garrison v. Pope

Frankenthaler, J. This action, brought under sections 90, 91 and 91-a of the General Corporation Law, by plaintiff as trustee in bankruptcy, seeks an accounting from former officers and directors of the bankrupt corporation of sums alleged to have been wrongfully withdrawn from its funds and misappropriated during years antedating the bankruptcy. The complaint, even though 291 most-liberally construed, does not set forth that there were any creditors in existence at the time of said alleged wrongful withdrawals, nor that the said withdrawals were for the purpose of defrauding creditors then existing and for whom the plaintiff is now acting, nor that the transactions were in furtherance of a scheme to defraud subsequent creditors. On the authority of Lummis v. Crosby (176 App. Div. 315) and Lummis v. Crosby (181 id. 884; affd., 224 N. Y. 611) this motion for judgment on the pleadings dismissing the complaint is granted, with leave, however, to serve amended complaint upon payment of costs.