
    Thea Isaac, Plaintiff, v. Bernard K. Marcus and Others, Defendants.
    
    Supreme Court, New York County,
    April 1, 1931.
    
      Samuel Hoffman, for the plaintiff.
    
      Carl J. Austrian [Arthur Ofner and Harold N. Cohen of counsel], for the defendants The Bank of the United States and Joseph A. Broderick, as Superintendent of Banks of the State of New York.
    
      
       Affd., 233 App. Div. 803.
    
   Valente, J.

These three actions are brought against directors of the Bank of United States and the former directors of banking institutions merged with it. The action is by a stockholder in a representative capacity to compel them to account to the bank for waste in their official acts. Motions are now made by the Superintendent of Banks in charge of liquidation of the affairs of the bank to dismiss it.

The only objection that requires consideration here is that the plaintiff has no legal capacity to sue. In two similar actions in which the directors of the bank were practically the sole defendants except for the nominal presence of the Superintendent, the motion to dismiss was granted (Bomzon v. Mitchell, and Birnbaum v. Marcus, N. Y. L. J. March 21, 1931). The situation is not different merely because directors of other banks merged with the Bank of United States are joined as codefendants, because the sole beneficiary of all the actions is the Bank of United States.

The remedy of the stockholders is to move to compel the Superintendent to bring the action. Of course, if the circumstances specified in section 58 of the Banking Law should arise, the situation will be otherwise.

Motions granted. Settle orders.  