Morris Davidoff, Suing on His Own Behalf and on Behalf of All Others Similarly Situated, Appellant-Respondent, v. Elsie A. Seidenberg, as Executrix of Henry J. Seidenberg, Deceased, et al., Respondents-Appellants, and William Davidoff, Respondent

Morris Davidoff, Suing on His Own Behalf and on Behalf of All Others Similarly Situated, Appellant-Respondent, v. Elsie A. Seidenberg, as Executrix of Henry J. Seidenberg, Deceased, et al., Respondents-Appellants, and William Davidoff, Respondent. [MAJORITY] In our opinion, the complaint does not set forth a sufficient cause for the intervention of the court to compel the declaration of a dividend. It does not allege facts showing the financial condition of the defendant corporation, its assets and liabilities in addition to the naked assertion of a surplus in a stated amount, and why such surplus, together with any moneys which the defendant officers-direetors may be required to repay to the corporation, is not needed in the business of the corporation. (Nauss v. Nauss Bros. Co., 195 App. Div. 318, 325.) Paragraphs 7 and 8 of the complaint, which allege, respectively, that no dividend was declared during the five years in question, and that the corporation has an earned surplus in excess of $107,000, admittedly relate only to the claim with regard to the failure to declare dividends. They have no relevancy to the cause of action for alleged misappropriation of corporate earnings. It is our further opinion that plaintiff should have the opportunity of pleading properly his claim with regard to the failure of the officers-direetors to declare dividends, as to which cause of action defendant William Davidoff, as a director, would be a proper party defendant. Carswell, Acting P. J., Johnston, Sneed, Wenzel and MaeCrate, JJ., concur.