PLEASE TAKE NOTICE, that upon the annexed affidavit of Herman Rosenberg, sworn to the 5th day of August, 1953, and upon the decision of the Hon. Eugene L. Brisach appearing in the Law Journal of August 3, 1953, and upon all the pleadings and proceedings heretofore had here

in, the undersigned will move this Court at a 12 Special Term Part I thereof, located at the Court

House at Foley Square, in the Borough of Manhattan, City of New York, on the 10th day of August, 1953, at 10 o'clock in the forenoon of that day, or as soon thereafter as counsel can be heard, for an order permitting reargument of the original application made by the petitioners herein in the above-entitled matter, and upon such reargument, that the original application be granted, and the relief therein sought be allowed, and for such other, further and different relief Notice of Motion. 16

13

as to the Court may seem just and proper in the premises.

Affidavit of Herman Rosenberg, Read in

Support of Motion.

SUPREME COURT OF THE STATE OF

NEW YORK

COUNTY OF NEW YORK

[SAME TITLE]

-0

17 State of New York

County of New York-ss.:

HERMAN ROSENBERG, being duly sworn, deposes

and says:

I am one of the petitioners in the above-entitled proceeding, and make this affidavit in support of the petitioners' application for reargument of the motion heretofore decided by Mr. Justice Eugene L. Brisach, decision of which appeared in the Law Journal of August 3, 1953, reading as follows:

18

“In re Nat. Kiddie Rides, Inc.—Motion is denied and the petition dismissed. It is admitted by the petitioners that the stock they subscribed for was not paid for, and they have until 1954 to pay for the same, and, in view of that, was not issued. They are not stockholders within the meaning of section 69 of the Stock Corporation Law.”

Reference in this affidavit is made to the original petition and reply affidavits submitted by Affidavit of Herman Rosenberg.

petitioners in support of their applications. 19 Briefly, this is an application by the petitioners as stockholders to vacate and set aside the alleged meetings of the stockholders and board of directors of the above-named corporation, at which meetings your petitioners were respectively removed as directors and officers of the said corporation, and further petitioning the Court for petitioners' reinstatement as officers and directors of the said corporation, and further requesting the appointment of a receiver of the said corporation to preserve and protect the as

20 sets thereof.

It is your deponent's sincere belief that the Court inadvertently erred in its decision. Section 70 of the Stock Corporation Law makes a stock subscriber liable on his subscription. The subscription of both petitioners was secured by their promissory notes. These facts were alleged in the moving papers and were not denied in the answering affidavits. No memorandum of law was submitted on petitioners' behalf at the time of the submission of the original motion, and therefore the Court's attention was not 21 properly directed to the existing cases which hold that a subscriber to the stock of a corporation who is legally bound by his subscription is for all intents and purposes a stockholder within the meaning and purview of the Stock Corporation Law, and is entitled to the full benefits and subject to the same liabilities as a stockholder of fully paid stock who has possession of his certificate.

A memorandum of law will be submitted to the Court on the return date of this motion, set

Affidavit of Herman Rosenberg.

22 ting forth the cases in which the precise situa

tion involved herein was concerned and such decisions uphold petitioners' contention in every respect.

That petitioners' attorney has made several efforts to communicate with Mr. Justice Brisach and his secretary in order to seek leave to make this motion for reargument, but due to the fact that both the Justice and his secretary were on vacation, said attorney was unable to communicate or to get in contact with either of them.

23

WHEREFORE, your deponent respectfully asks that an order be granted herein, permitting reargument of the original application made by the petitioners herein, and that upon such reargument the original application be granted, and the relief sought therein be allowed.

HERMAN ROSENBERG.

(Sworn to by Herman Rosenberg, Aug. 5, 1953.)

24