In re the Dissolution of Three Hundred Fifty West Forty-Sixth Street, Inc.

Order, entered on September 5, 1963, denying respondent-appellant’s motion to vacate an ex parte order entertaining a corporate dissolution proceeding and appointing a Referee and temporary receiver, unanimously reversed, on the facts and on the law, the order vacated and the appointments of the Referee and temporary receiver set aside, with $20 costs and disbursements to the respondent-appellant. A corporate dissolution pursuant to section 103 of the General Corporation Law (now included in Business Corporation Law, § 1104) may only be sought by “ the holders of one-half of the stock entitled to vote at an election of directors”. Looking toward a corporate dissolution, it should be clear that the petitioner is a holder of the requisite amount of the stock in the corporation sought to be dissolved. The question of petitioner’s ownership of such stock is strongly contested. Minimally there should have been a determination of the status of the petitioner with respect to the ownership of the stock. Particularly so where, as in this case, there is pending an independent action seeking a declaration that this petitioner is not a stockholder of the corporation. Inasmuch as the papers indicate that there is presented a serious issue as to whether the petitioner is a stockholder the order appointing a Referee and a temporary receiver should not be permitted to stand. Of course, this is without prejudice to any further proceedings the petitioner may be advised to institute. It may well be that the most expeditious resolution of the problem can be achieved by expediting the action for declaratory judgment now awaiting trial. Appeal from the ex parte order entered on July 18, 1963 entertaining the petition for dissolution and appointing a Referee and temporary receiver is dismissed, without costs. No appeal lies from an ex parte order (Kirzon v. Marcus Corp., 18 A D 2d 906). Concur — Breitel, J. P., Rabin, Valente, McNally and Eager, JJ.