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SCHWARTZ v. MARIEN

43 A.D.2d 307 (1974)

Margaret A. Schwartz, as Executrix of Girard A. Dietrich, Deceased, Appellant, v. Robert J. Marien et al., Respondents, et al., Defendants

Appellate Division of the Supreme Court of the State of New York, Fourth Department.

January 17, 1974.

Attorney(s) appearing for the Case

Offermann, Fallon, Mahoney & Adner (Francis J. Offermann, Jr., of counsel), for appellant.

Lipsitz, Green, Fahringer, Roll, Schuller & James (Evan E. James, Carmin R. Putrino and Lawrence A. Schulz of counsel), for respondents.

DEL VECCHIO, J. P., MARSH, WITMER and SIMONS, JJ., concur in Per Curiam opinion; MOULE, J., dissents and votes to reverse and grant plaintiff's motion, in an opinion.

Per Curiam.

Absent specific provision in the certificate of incorporation, shares of treasury stock are not subject to preemptive rights of purchase (Business Corporation Law, § 622, subd. [e], par. [4]). Nevertheless the directors of the corporation owe a fiduciary duty both to the corporation and to its shareholders, and the sale of treasury stock to employees and directors and the refusal to sell similar shares...

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