Thomas Gilleran, Respondent, v. Springfield, L. I., Cemetery Society and Others, Appellants

Thomas Gilleran, Respondent, v. Springfield, L. I., Cemetery Society and Others, Appellants. First Department, April 3, 1914. Corporation — individual action to restrain holding of special meeting of directors — proposed amendment to by-laws. A stockholder and officer of a cemetery corporation cannot maintain an action, brought not on behalf of other stockholders similarly situated or on behalf of the corporation, but individually, for the purpose of restraining the holding of a special meeting of directors called for the purpose of amending the by-laws, where he fails to show that anything proposed to be done at the meeting will be injurious to the interests of the society, or its stockholders, or to himself individually. Appeal by the defendants, Springfield, L. I., Cemetery Society and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 5th day of December, 1913, overruling a demurrer to the complaint. Antonio Knauth, for the appellants. John M. Gardner, for the respondent. [MAJORITY — Scott, J.:] Scott, J.: The action is brought to restrain the holding of a special meeting of the directors of the defendant cemetery society, upon the ground that the call for such meeting was not issued in the manner prescribed by the by-laws. The ultimate purpose of the action is to prevent the adoption of certain amendments to the by-laws. We do not consider it necessary at this time to determine whether or not the amendments, if adopted at the meeting sought to be restrained, would be valid or not. The difficulty we find with the present action is that the plaintiff fails to show that the proposed meeting, if held, will injure him in any legal sense. He sues individually and alleges that he is president of the society and the holder of some of its certificates of indebtedness. He does not sue in behalf of the society or in behalf of other certificate holders situated similarly to himself. Nor does he show that anything proposed to be done at the meeting will be injurious to the interests of the society or its certificate holders, or specially injurious to him as the holder of a certificate. If the meeting be held, and the proposed amendments adopted and any action be threatened or attempted under them in derogation of plaintiff’s legal rights as president or certificate holder it will be open to him to take appropriate legal measures to protect those rights. Even if the call for the meeting be irregular, it by no means follows, of necessity, that the action taken at the meeting will be invalid. The judgment appealed from must be reversed, and the demurrer sustained, with costs to defendants in this court and in the court below. Ingraham, P. J., Olarke, Dowling and Hotchkiss, JJ., concurred. Judgment reversed, with costs, demurrer sustained, with costs, with leave to plaintiff to serve amended complaint on payment of costs.