17 AD 2ND715 0 To be argued by New York Supreme Court APPELLATE DIVISION—FIRST DEPARTMENT ACTION No. 1 SAMUEL J. GREENBERG, et al., Plaintiffs-Respondents, against RICHARD S. CHILDS, et al., Defendants-Respondents. ACTION No. 2 MEYER HOLSTEIN, et al., Plaintiffs-Appellants, against ALEXANDER L. GUTERMA, et al., Defendants-Respondents. BRIEF OF RESPONDENTS RICHARD S. CHILDS AND A. E. CHEW The respondents, Childs and Chew, did not appear for, or in opposition to, the application of the two defendants (fol. 41) to consolidate Action No. 1 and Action No. 2, and for other relief. No affidavits were filed on behalf of the respondents Childs or Chew (fols. 19-21). Said respondents, Childs and Chew, did not appear for, or in opposition to, the relief sought (fols. 19-21). Said respondents take no position in support of or against the questions raised on this appeal. It is, therefore, respectfully submitted that, under no circumstances, are the respondents Childs and Chew liable for any costs or disbursements on this appeal. Respectfully submitted, CHARLES H. BUCKLEY, Attorney for Respondents, Richard S. Childs and A. E. Chew. no AD AD 2ND715 O To be argued by New York Supreme Court APPELLATE DIVISION—FIRST DEPARTMENT ACTION No. 1 SAMUEL J. GREENBERG, IRVING GROSSBACH and Plaintiffs-Respondents, against SON, LESTER G. CLARK, A. E. Chew, GEORGE LINK, Defendants-Respondents. ACTION No. 2 MEYER HOLSTEIN, on behalf of himself and all other Plaintiff-Appellant, against FASSOULIS, HARRY S. ADAMS, WALTER W. BIRGE, Defendants-Respondents. BRIEF OF RESPONDENTS ALEXANDER Statement Respondents are named as defendants in both of the above entitled derivative actions brought by minority stockholders of The Bon Ami Company. Action No. 1 resulted from the consolidation of three separate action brought by the plaintiffs therein named by an order of the Supreme Court, New York County, entered June 3, 1958 (fol. 42). By said order of consolidation Milton Paulson, Esq., who had appeared of counsel for plaintiff Greenberg, was named General Counsel (fol. 141), further lawsuits on the transactions complained of were enjoined (fol. 147), and other relief was granted. Thereafter plaintiff Holstein commenced Action No. 2 by serving defendant Guild Films Company, Inc. (fol. 44). On discovery of the commencement of said latter action, defendants Guterma and Eveleigh moved to consolidate it with the prior existing one. Such motion was granted, and resulted in the order appealed from. The Issue Shall defendants, only because they are named as defendants in stockholders' actions and who are still presumed innocent until held liable, be harassed and annoyed by a multiplicity of actions brought on substantially identical grounds ? Merely because one vaguely worded cause of action is added in Action No. 2 to others set forth already in Action No. 1, shall Action No. 2 be exempt from the prior order of consolidation forbidding commencement of actions on transactions already complained of? POINT I Defendants are entitled to protection from unnecessary harassment. No one can prevent plaintiffs from naming Mr. Guterma and Mr. Eveleigh as defendants. However they certainly have no liability until after a full trial determination of the facts and the law by the Courts. And until such time they are entitled to protection against unnecessary harassment by multiple attempts to enforce the same alleged rights. Levin v. Skouras, et al., U.S.D.C., S.D.N.Y., Civ. 38-422 (not off. rep.). The transactions set forth in Action No. 1 are the result of the consolidation of the complaints in three separate actions with the addition of the so called “Icythian Package” transaction (fols. 85-90). Action No. 2 adds only a vaguely worded cause of action concerning alleged borrowing on and mortgaging of corporate assets (fols. 117122), repeats the prior existing causes of action from Action No. 1 and adds a few defendants allegedly connected with the alleged “new” cause of action. By the consolidation of Actions Nos. 1 and 2 the Court avoided in this duplicatory situation the harassment of defendants by multiple examinations before trial, discoveries and a race of diligence among counsel, each eager to claim that he alone was responsible for any recoveries made. The forgotten men in this situation are the defendants. Solely because they are named as defendants in a stockholders action, they must stand naked and mute before a host of scalp-bent counsel all brandishing the same color tomahawk. Defendants Guterma and Eveleigh do not here |