ANDRE v. BEHA, 240 N.Y. 605 (1925)

148 N.E. 724

NICHOLAS ANDRE, Suing on Behalf of Himself and Other Stockholders of NORTHERN INSURANCE COMPANY OF MOSCOW, Appellant, v. JAMES A. BEHA, as Superintendent of Insurance of the State of New York, Respondent, and MORTIMER W. BYERS et al., as Trustees, et al., Appellants.

Court of Appeals of the State of New York.Argued March 4, 1925
Decided April 7, 1925

Appeal from the Supreme Court, Appellate Division, Second Department.

John W. Hogan, Paul Bonynge and Wendell P. Barker for plaintiff, appellant.

Mortimer W. Byers for trustees, defendants, appellants.

William H. Harding and Meier Steinbrink for Northern

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Insurance Company of Moscow et al., defendants, appellants.

Albert Ottinger, Attorney-General (Edward G. Griffin of counsel), for respondent.

Frederick B. Campbell and Paul C. Whipp, amici curiae.

Per Curiam.

Plaintiff as managing director for Northern Insurance Company of Moscow is not the real party in interest and may not maintain this action as such. (Spencer v. Standard C. M. Corp., 237 N.Y. 479.)

As a stockholder suing in a representative capacity in the right of the corporation he has not made out a cause of action since no waste of corporate assets is threatened. (Howes v City of Oakland, 104 U.S. 450.)

The judgment should be affirmed, with costs.

HISCOCK, Ch. J., CARDOZO, POUND, McLAUGHLIN and LEHMAN, JJ., concur; CRANE, J., dissents; ANDREWS, J., not voting.

Judgment affirmed.