
    (April 25, 1951.)
    Nathan Katz, Individually and Suing on Behalf of Himself and All Other Common Stockholders of R. Hoe & Co., Inc., Similarly Situated, Appellant, v. R. Hoe & Co., Inc., et al., Respondents, and Alfred D. Martin, Appellant.
   Per Curiam.

This action by a holder of common stock of a corporation claiming to sue on behalf of himself and all other common stockholders, was instituted primarily for an injunction to restrain a corporate consolidation. Months before the appeal was heard, the consolidation had been fully consummated and the stock of the corporation reissued in accordance therewith, after plenary trial in which Special Term had entered judgment in defendants’ favor dismissing the complaint on the merits.

Relief was also sought on the ground of fraud but the evidence supports the trial court’s finding that there was no fraud.

The action is in equity. As a result of the consummated consolidation, rights have accrued to third parties; a balancing of equities weighs in favor of such third parties and the benefit to the corporation as opposed to plaintiff, one stockholder, who has instituted this action, joined only by defendant Martin, another common stockholder and also a director. Great numbers of the class plaintiff presumes to represent have exchanged their shares in accordance with the executed and completed plan of consolidation or had previously petitioned for an appraisal of their stockholdings.

Under the state of facts disclosed, the judgment in, favor of defendants-respondents dismissing the complaint and cross complaint, and the order denying plaintiff’s motion for a new trial, should be affirmed.

Peek, P. J., Glennon, Dore, Cohn and Shientag, JJ., concur.

Judgment in favor of defendants-respondents dismissing the complaint and cross complaint, and the order denying plaintiff’s motion for a new trial unanimously affirmed, with costs. [199 Mise. 459.]  