A. Rosen & Sons, Inc. v. Silverman

The counterclaim is clearly insufficient. The alleged dividends sought to be recovered have not been declared. The declaration of such rests wholly within the Sound discretion of the board of directors. (Liebman v. Auto Strop Co., 241 N. Y. 427.) Such an action, moreover, would not he at law (Godley v. Crandall & Godley Co., 212 N. Y. 128; Greeff v. Equitable Life Assurance Society, 160 id. 19), and would he against the directors who are not here parties.

As a defense, however, the pleading may be sustained solely upon the ground that it pleads lack of consideration. It is asserted that the…