
    In the Matter of William Dierking, Petitioner, v. Associated Book Service, Inc., et al., Respondents.
    Supreme Court, Special Term, New York County,
    October 13, 1960.
    
      Herma/n L. Mehr for petitioner. Hamilton Lieb for respondents.
   Jacob Markowitz, J.

Petitioner moves for an inspection and examination of the books and records of the respondent corporation. The petitioner and the two individual respondents are the sole stockholders of the respondent corporation.

The issue arises upon the alleged fact that the petitioner is under contract to sell the stock of the corporation held by him and that the buyer has instituted an action against the petitioner for specific performance compelling delivery of the certificate of stock representing the shares thus sold. In that action it appears that petitioner, as defendant, has raised a defense that the contract is unenforcible by reason of the fact that the stock must be first offered to the other stockholders of the corporation, the individual respondents. The respondents, the remaining stockholders, have waived any right of first offer and consent to the sale by the petitioner to its contracting buyer.

Accordingly, petitioner does not have such interest in any of the stock of the corporation as would warrant favorable consideration of the application, or a finding that it is made in good faith. The motion is denied.  