Kahle v. Mount Vernon Trust Co. 249 A.D. 824

Action against the directors and officers of a trust company by a plaintiff suing, as_a stockholder on behalf of himself and others similarly situated, for damages *825due to alleged misconduct in the management of said trust company. Order entered November 12, 1936, denying defendant’s motion for an allowance of costs and for judgment dismissing the complaint modified by striking therefrom the words “ and the plaintiff is directed to proceed to trial when the case is reached on the November calendar of this court.” As so modified, the order is affirmed, in so far as an appeal is taken, with ten dollars costs and disbursements to appellant. As to this phase of the litigation the defendants should have been remitted to the justice presiding at the November term for such relief as they may be entitled to when the case is reached on the calendar. To do otherwise would result in various orders in the action operating at cross purposes. This is indicated by the determination of Mr. Justice Close (162 Misc. 44) that the defendants have not met the requirements of the plaintiff under prior orders, compliance with which is a condition precedent to plaintiff’s being in a position to proceed with the trial. Lazansky, P. J., Carswell, Davis, Johnston and Adel, JJ., concur.