
    Fourth Department,
    December, 1919.
    George H. Kennedy, Appellant, v. Allan A. Lownes and Relown Theater Company, Inc., Respondents.
    
      Corporation — transfer of stock — equity — stockholder’s rights.
    
    Appeal by the plaintiff from a judgment of the Supreme Court, entered in the Erie county clerk’s office June 23, 1919, dismissing plaintiff’s complaint upon the merits, with costs, after a trial at the Erie Special Term.
   Per Curiam:

We hold that this judgment should be reversed upon the facts and that plaintiff should be permitted to recover judgment against defendant Lownes, directing said Lownes to transfer to plaintiff fifty shares of the capital stock of the defendant Relown Theater Company, Inc., and to account to plaintiff for and pay over to plaintiff all the dividends received by said Lownes upon said fifty shares from the incorporation of said company to the time of such transfer. Plaintiff is not entitled to any recovery in this action against the defendant company. This action, however, should not prejudice plaintiff’s right, after he becomes a stockholder, to recover for the company any of its assets which may have been improperly diverted from its treasury, provided the company refuses to sue. We disapprove and reverse the 43d finding of fact and all the conclusions of law contained in the decision of the court at Special Term; and this court, as additional findings of fact, adopts and makes the findings numbered 11, 14, 15, 41, 42 and 43 contained in plaintiff’s requests to find in the court below. And as conclusions of law this court finds and decides: First. That plaintiff is entitled to fifty shares of the capital stock of said Relown Theater Company, Inc., being part of the shares issued to and now held by defendant Lowmes, and said Lownes is directed to assign, transfer and deliver to plaintiff said fifty shares. Second. That plaintiff is entitled to the dividends paid to said Lownes upon said fifty shares from the time of the incorporation of said company until the time said shares are transferred to plaintiff. Third. That defendant Lownes be required to account to plaintiff for such dividends and to pay the amount thereof to plaintiff and that plaintiff have execution therefor. Fourth. That plaintiff is not entitled to any recovery as against the defendant Relown Theater Company, Inc. Interlocutory judgment is directed accordingly in favor of plaintiff against defendant Lownes, with costs, including costs of this appeal, and dismissing the complaint as against Relown Theater Company, Inc., without costs. All concur. Judgment reversed upon the facts and interlocutory judgment directed in favor of the plaintiff in accordance with per curiam opinion, with costs, and dismissing the complaint as against Relown Theater Company, Inc., without costs.  