Beresovski v. Warszawski

271 N.E.2d 520 (1971)

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Nature of the Case

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Facts

P owned 25% of the stock of Joint Property Owners. Ds were father and son, and they owned the remaining shares. The shareholder agreement called for all three parties to be directors of the corporation and that a fourth director was to be elected annually, that all acts by the board would require a vote of three directors, and any action taken by stockholders would require an affirmative vote of 85% of the issued shares, that property owned by the corporation should not be mortgaged without 100% approval of issued shares, and that if any provision was invalid it would be severed or cured by amending the certificate of incorporation. The supermajority provisions were invalid under state law unless they were embodied in the certificate of incorporation. P made repeated demands for this to be done, but D refused. The first demand was made on June 5, 1957, and was within ten years of the commencement of this action in May 15, 1967. The trial court dismissed the action on the ground that it was barred by the 6-year Statute of Limitations applicable to an action upon a contractual obligation or liability. The Appellate Division affirmed, and P appealed. P contends the 10-year statute of limitations for equity action controls this case.