Interborough News Co. v. Meyer

Order unanimously affirmed, with costs. Memorandum: Special Term properly granted defendant Meyer’s motion to dismiss the complaint. In his memorandum decision, the Special Term Justice gave as one of his reasons that there was no capacity on the part of the corporation to bring the action. He reached this conclusion because he was “ of the opinion that there should have been such a meeting duly assembled and that the authority to sue and terminate the defendant’s employment should have been determined at a duly constituted meeting for that purpose”. We concur with that statement of Special Term and it is on this ground that the complaint was properly dismissed, rather than on the issue of capacity to sue. This determination being proper, ‘Special Term correctly held that it rendered the other motions academic. (Appeal from order of Erie Special Term granting defendant’s motion to dismiss complaint in Action No. 1, denying motion as to Action No. 2 for removal to Erie County and for joint trial and granted Meyer right to open and close in Action No. 2.)