#### Colson E. Hamilton, as Director of the F. C. Linde Company, Respondent, *v.*William H. Gibson and Others, Defendants, Impleaded with David H. Van Name and E. C. Linde Company, Appellants.

First Department,

July 7, 1911.

Abatement of action — action by director against codirectors under sections 90, 91, General Corporation Law.

Under sections 90 and 91 of the General Corporation Law a director of a corporation can only maintain an action against his codirectors for mismanagement, etc., by virtue of the fact that he holds that office. Hence, the action abates when by reason of the fact that he is not re-elected to office he ceases to be a director.

The action does not survive merely because the former director continues to be a stockholder, nor by virtue of section 756 of the Code of Civil Procedure providing that in ease of a transfer of interest or a devolution of *826liability tbe action may be continued by or against tbe original party unless tbe court directs tbe person to whom the interest is transferred or upon whom the liability is devolved to be substituted in tbe action or joined with tbe original party as tbe case requires.

Claree, J., dissented.

Appeal by the defendants, David H. Van Name and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 3d day óf May, 1911, denying said defendants’ motion to vacate an order for the examination of the said defendants before trial.

*James O. 'Clark,*for the appellants.

*Curtis C. Cooper,*for the respondent..

Scott, J.:

This is an appeal from an order denying a motion to vacate •an order for the examination' of the defendants David H. Van Name and.the F. 0. Linde Company before trial. The motion was properly denied, if the action has not abated, and the one question presented by the appeal is whether or not it has abated.

The plaintiff sues as a director of the F. 0. Linde Company, charging his codirectors with various acts of misconduct in the management of the affairs of the corporation, and asking appropriate relief. Since the action was brought the plaintiff has ceased to be a director of the company, having failed of selection at the annual meeting held on February 18, 1911. The action is brought under sections 90 and 91 of the General Corporation Law (Consol. Lawsj chap. 23; Laws of 1909, chap. 28), which were formerly sections .1181 and 1182 of the Code of Civil Procedure. Those sections provide that an action may be maintained against one or more trustees, directors, managers or • other officers of a corporation for any one of a number of purposes, including the purposes for which this action is brought. (§ 90.) Such an action may be brought by the Attorney-General; in certain cases by a creditor of the corporation; “ or by a trustee, director, manager or other offi.cer of the. corporation having a general superintendence of its concerns.” (§ 91.) It was only by virtue of his incumbency of *827the office of director that the plaintiff ever had a right to maintain this action. If he had not been a director he could not have begun it at all, and if he had attempted to do so his complaint would have been demurrable. It is a director, in virtue of his office, that the statute authorizes to sue, not the individual who holds the office. It seems to follow that'when the plaintiff ceased to be a director, and thereby lost the only qualification to sue which he ever possessed, the action must have abated, since the plaintiff, to wit, 0. E. Hamilton as *director,*had ceased to exist. It is true that the Code , of Civil Procedure provides that *“*An action does not abate by any event, if the cause of action survives or continues ” (§ 755); and that, “In case of a transfer of interest or devolution of liability the action may be continued by or against the original party, unless the court directs the person to whom the interest is transferred, or upon whom the liability is devolved, to be substituted in the action or joined with the original party as the case requires.” (§ 756.) The question remains whether or not the cause of action set forth in the complaint does survive, and if so whether there is any person upon whom the plaintiff’s interest may be said.to have devolved. Undoubtedly the same state of facts continues to exist which in plaintiff’s estimation justified him in calling his fellow-directors to account, but the power given to a director to sue under the sections above cited depends for its exercise upon the point of view and the sense of responsibility of the director who sues. The same facts which might impel one man to sue as director might wholly fail to impress another as sufficient to justify an action. It follows that while the plaintiff in such an action acts only by virtue of his official position, his impulse to act depends entirely upon his personal view point. When he ceases to bé a director his right to maintain the action as such ceases. Thereafter he has no standing to prosecute it, and his cause of action cannot survive. Another director may bring another action based upon the same facts, but he could do it only by virtue of his own office as director, and it would, therefore, be a new and a different cause of action. If it were to be held otherwise, still it would be impossible to place the finger on any one particular ■ director upon whom the plaintiff’s interest or right of action *828devolved. If the action had been brought by the Áttorney-G-eneral in behalf of the ■ People, or by a creditor, a different question would be presented, for though there , may be a new Attorney-Greneral the interest of the People would still survive, and if a creditor plaintiff had died his interest in the action would devolve upon his personal representatives. It is not relevant to say that plaintiff, in addition to having been a director, is also a stockholder. His right to maintain this action depends, wholly upon his holding of the office of director, and he cannot turn this purely statutory action, open to him -only because he was a director, into a stockholder’s action under some other provision of law. In my opinión the action has abated and the cause of action is not one which survives. It follows that plaintiff has no present right to the examination he seeks.

The order must, therefore, be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs. • ■ ■

Ingraham, P. J., McLaughlin and Dowling, JJ., concurred; Clarke, J., dissented.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.