Chaft v. Kass (19 A.D.2d 610, 1963)

Order entered February 20, 1963 on motion of defendants Julius Kass and Handler & Kass, order entered February 20, 1963 upon motion of defendant Isador 1. Tilton, and order entered February 20, 1963 on motion of defendant Speedry Chemical Products, Inc., unanimously reversed, on the law and on the facts, and in the exercise of discretion, and the motions granted to the extent of dismissing complaint herein, without costs, with leave to replead in a manner not inconsistent herewith. The plaintiff and the intervening plaintiff acquired their respective stock interests in the corporation sometime subsequent to the execution and delivery of the July 23, 1959 agreement whereby a predecessor of the defendant corporation agreed to pay defendant Rosenthal a percentage of its net sales in consideration of his granting to it of an exclusive license for the use of certain formulae, processes and methods relating to manufacture and use of ink. The fact is that it appears that the July, 1959 licensing agreement was executed and delivered by the predecessor corporation at a time when Rosenthal was the sole stockholder thereof and, therefore, such agreement is immune from attack in this type of action. (See General Corporation Law, § 61; Capitol Wine