In re Fehrenbach

Frankenthaler, J. This motion has been withdrawn as to items 2, 3 and 4 of the notice of motion. The only relief now sought is the dissolution of the corporation. The moving papers fail, however, to comply with the provisions of the General Corporation Law in respect to proceedings for the dissolution of corporations. Section 101 of that statute is inapplicable since a majority of the directors do not deem the dissolution beneficial to the corporation and have not presented a petition for that relief. Section 102 authorizes a majority of the stockholders to petition the directors to institute dissolution proceedings but no such petition has been presented to the directors nor does it appear that a majority of the stockholders desire a dissolution. Section 103 is likewise inapplicable since it applies, by its terms, only in a case where the corporation has an even number of directors who are equally divided respecting the management of its affairs. Here the corporation has an uneven number of directors and they are not equally divided in regard to the management. The case of Matter of McLoughlin (176 App. Div. 653), cited by the petitioner, is clearly distinguishable since that case was decided under section 172 of the former statute which permitted stockholders to present a petition for dissolution if the stock was divided equally between persons favoring the course of some of the directors and persons favoring the course of other directors. The present statute does not contain any such provision. The proceeding is accordingly dismissed.