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IRA W. BERMAN, being duly sworn, deposes and says that he is associated with Nathan, Mannheimer, Asche, Winer & Friedman, appellants appearing specially, pro se.
That deponent makes this affidavit pursuant to Sections 170a and 616 of the Civil Practice Act and Rule 234, as amended, of the Rules of Civil Practice, since the attorneys for the plantiffes
392 respondents,and He defendants-he spondents have been requested to stipulate as to the correctness of the papers and have failed and refused to do so and have failed and refused to waive certification thereof.
The foregoing printed papers on appeal from an order have been personally compared by me with the originals on file in the office of the Clerk of the County of New York and found to be true and complete copies of said originals and the whole thereof, of the notice of appeal, the order appealed from and all the papers which were used 393 in the court below and which are specified in the order appealed from and the whole thereof now on file in the office of the clerk of the County of New York.
IRA W. BERMAN. Sworn to before me this
13th day of November, 1958.
ALVIN L. ARNOLD
LEON E. BORDEN, HELEN ROSENFELD and
F. E. ADAMS, L. W. CAMPBELL, J. J. FLANAGAN,
W. E. HENGES, S. Z. KRINSLY, N. E. ALEXANDER,
F. H. FARNSWORTH, et al.,
NATHAN, MANNHEIMER, ASCHE, WINER & FRIEDMAN, appearing specially only pro se,
The law firm of Nathan, Mannheimer, Asche, Winer & Friedman, appearing specially (379),*
* References are to folios of printed Papers on Appeal.
appeals from an order of Mr. Justice Lupiano which enjoins them and three non-residents, whom the said attorneys represent in an action pending in the United States District Court for the Eastern District of New York, from proceeding further in that action (7-12, 17-18).
Neither appellants nor their clients had any relation whatever to the present action until the present motion (379-80).
On or about November 15, 1957, Sun Chemical Corporation mailed to stockholders a proxy statement asking them to approve at a meeting to be held on November 29, 1957, the purchase by Sun from its own President, Alexander, the assets of Ansbacher-Siegle Corp., which was wholly owned by Alexander (205, 223-303).
On November 22, 1957, a week before the meeting, Borden, a minority stockholder, brought this action to set aside the transaction which had not yet taken place (3).
In December, 1957, Rosenfeld, another minority stockholder, brought a like action in Supreme Court, Nassau County (31, 66).
On January 7, 1958, one Lewy brought a similar action in Supreme Court, New York County (31, 50).
On January 9, 1958, five weeks after consummation of the transaction (December 2, 1957), defendants moved to consolidate the three pending actions and to stay all other stockholders from suing (63-4). The plaintiffs were quite agreeable. Borden's attorney, Abraham M. Glickman, Esq., submitted an affidavit dated January 14, 1958 “in support of said motion” and asked that he be appointed General Counsel (65). Rosenfeld submitted her attorney's affidavit of January 17, 1958 “in support of said motion” and agreed not only to the consolidation and stay but also that Mr. Glickman be General Counsel (65). Her husband's office associate, Milton Paulson, Esq., now emerges as “associated in the prosecution of this case with Abraham M. Glickman” (353-4) and joins defendants on this motion. There was no opposition whatever to the motion (64-5).
On this unanimous agreement an order was entered on January 30, 1958, providing as follows:
(a) the three pending actions were consolidated (65-6);
(b) Abraham M. Glickman, Esq., attorney for Borden, was appointed General Counsel (69);
(c) all other stockholders were stayed from instituting actions arising out of the same
transactions (71-2). The consolidated complaint alleges a single cause of action, namely, that Alexander was paid a grossly excessive price for the assets of Ansbacher-Siegle (76 et seq.). (That the transaction was outrageous may be seen from fols. 304-50).
Although the consolidation order is dated January 30, 1958, until the time that we commenced our action in the Federal Court, on October 7, 1958, there was no examination before trial in this case, no bill of particulars and no discovery to ascertain the value of the Ansbacher assets (32-3). After October 21, 1958, plaintiffs in this case