We think this motion should have been granted. Many of the changes which are sought to be made by the supplemental and amended pleadings are to. correct the names of the parties, where the names were unknown at the time of the commencement •of the action, and to bring in the personal representatives of those who are dead. The receivers are also sought to be made parties defendant, in order to obviate an objection taken by some of the defendants, that there is a defect of parties defendant, in that the receivers are not parties to the action. The objection that this plaintiff had no right to maintain the action, in consequence of the provisions of chapter 441 of the Laws of 1897, should not be disposed of upon this motion. The question whether or not that act is retroactive, and applies to actions pending at the time of the enactment of the statute, should be left to be determined upon the trial, and not upon a motion of this character. When the action was ■commenced a stockholder had a right to bring such an action, and there is some doubt as to whether or not the provisions of this statute would apply to an action pending at the time the statute was enacted. Without expressing an opinion on that question, we think the plaintiff should be allowed to make the necessary amendments to the summons and complaint, so as to present the question, and have it determined in the ordinary way, upon the trial.
The order appealed from should be reversed, and the motion granted, without costs of this appeal, or in the court below. All concur.