(concurring). The plan evolved was designed to accomplish the perfectly proper corporate purpose of keeping-taxes at a minimum, upon a possible future sale of the corporation’s properties, and it may not be denied that the consummation of the plan might well have resulted in a gain to all concerned, corporation and stockholders alike. But that does not mean that the corporation is in a position to insist that plaintiff — a holder of five shares of stock out of some 21,000 shares outstanding — either agree to the plan or, objecting to it, seek an appraisal pursuant to sections 20 and 21 of the Stock Corporation Law. To *70be able to take advantage of those provisions, the corporation must establish that the proposed plan is within their coverage, and that it cannot do. In my view — and it is for this reason that I concur for reversal —khe series of transactions contemplated by the plan involve far more than a ‘ ‘ sale ” or a “ conveyance. ” of corporate assets, within the sense of the applicable statuteA That being so, there is, as the court at Special Term expressed it, “ no legislative warrant for limiting plaintiff and other dissenters to the remedy of appraisal and payment for their stock, and * * * plaintiff is free to contest the validity of the corporate action in the courts ” (203 Misc. 59, 64-65).
Lewis, Ch. J., Desmond, Dye and Froessel, JJ., concur with Conway, J.; Fuld, J., concurs in separate opinion; Van Vooehis, J., taking no part.
Judgment accordingly.