(dissenting in part). Appellants are not charged with having anything to do with the original transaction constituting the alleged conspiracy which occurred in 1931 as appellants did not become directors until after that date, most of them in 1936 and 1937. Appellants Boss, Semple and Gilbert W. Chapman may not be held for failure to prosecute a claim that was barred by the Statute of Limitations before they became directors and accordingly We agree that the second cause of action should have been dismissed as to them.
It appears that the complaint has been dismissed as against the only 1931 directors who have appeared in the action, but plaintiff states she is appealing.
The general allegations in the first cause of action that the defendants entered upon and became parties to and ratified a conspiracy that had taken place before they became members of the board of directors are, standing alone and unsupported by any facts, insufficient as mere general statements of alleged wrongdoing. (Price v. droves, 258 App. Div. 35; Laue v. Bethlehem Steel Corp., 243 id. 57.) The first cause of action was originally dismissed for failure to allege damage to the corporation. In so far as this cause of action alleges any facts as distinguished from general conclusions, it is still insufficient because it fails to show damage to the corporation from anything the appellants did or failed to do. This defect in the original complaint has not been cured by the addition of paragraph 53 as paragraph 53 is part of the second cause of action only.
In so far as the majority opinion fails to dismiss the first cause of action against all the appellants we dissent and vote that the order appealed from should be reversed and the motion granted; we concur in the conclusion that the second cause of action should be dismissed as against appellants Boss, Semple and Gilbert W. Chapman.
Martin, P. J., concurs.
Order modified in accordance with opinion, and as so modified affirmed, without costs. Settle order on notice.