I find it necessary to dissent from the conclusions reached and the reasoning adopted by the majority.
*269In the first place, if the first cause of action is for damage to plaintiff’s “investment”, then, by definition, all damage to the investment is damage to the corporation, and the derivative cause of action in the complaint provides unrestricted scope to assess and recover that damage. This seems to be the uniform teaching of the authorities (Gordon v. Elliman, 306 N. Y. 456, 466; Kavanaugh v. Commonwealth Trust Co., 181 N. Y. 121, 124; Niles v. New York Cent. & Hudson Riv. R. R. Co., 176 N. Y. 119, 124; Spiegelman v. Elfenbein, 232 App. Div. 651; Ballantine on Corporations, § 143; 13 Fletcher Cyclopedia of Corporations, § 5913; Glenn: “ The Shareholder’s ‘ Individual ’ Suit ”, 38 Yale L. J. 965; Ann. 167 A. L. R. 279).
Moreover, there is a practical consequence in converting the derivative claim into a ‘ ‘ personal ’ ’ claim. Plaintiff by not taking the necessary steps within the corporate frame to prevent a “ bad faith” dissolution evades the election and appraisal procedure provided by sections 20 and 21 of the Stock Corporation Law, with probably markedly different financial consequences.
Thus, it is apparent that plaintiff’s claim of bad faith, in order to sustain an individual cause of action at law, must rest on more than defendants’ desire to continue without him. Thus, too, it is not sufficient that defendants practiced a fraud or committed a breach of trust. The fraud or breach of trust will support a derivative action. Thus, unless there is direct damage personal to plaintiff, he may not sue in his individual capacity. Of course, if plaintiff had been the victim of fraud, deceit or bad faith practiced upon him in the liquidation of the corporation’s assets, so that he—not the corporation — shares in less than the full value of his stock interest, then he will have, and should have, an individual cause of action. So too, if the proceedings in dissolution were improper so that they resulted in individual damage to him, as contrasted with damage to the corporation, or were in breach of the personal stockholders’ agreement or some other determined personal relationship, then he would have an individual cause of action. Notably, plaintiff never asserts that the stockholders’ agreement with his two associates had any fixed term, nor does he allege any breach of the stockholders’ agreement. It was conceded on argument' that the majority stockholders had an unrestricted right to dissolve the' corporation, provided no improper means were uSed in disposing of corporate assets, including good will. (living the complaint a most liberal interpretation, it alleges no more than an improper disposition of good will vis-a-vis the corporation, and not the plaintiff.
*270So, in Gordon v. Elliman (306 N. Y. 456, 466, supra), the court quoted from Von Au v. Magenheimer (126 App. Div. 257, affd. 196 N. Y. 510) to the effect that: “ A stockholder cannot maintain a personal action for a wrong to the corporation merely because the indirect result is a diminution in the value of his shares (Niles v. N. Y. C. & H. R. R. R. Co., 176 N. Y. 119). Had the conspiracy in this case been unsuccessful [i.e. if plaintiff had not sold her shares] there would have been no direct injury personal to the plaintiff, and she might have succeeded by appropriate action in restraining the payment of the increased salaries and in compelling a proper distribution of earnings.”
Almost the precise situation involved in this case came before this court in Spiegelman v. Elfenbein (232 App. Div. 651, supra). At that time Mr. Justice Finch, dissenting alone, made argument for sustaining an alternative individual cause of action at law on behalf of a 50% stockholder who was ‘‘ frozen out ’’. In doing so he, too, relied on Kavanaugh v. Kavanaugh Knitting Co. (226 N. Y. 185, 193).
The Kavanaugh case is not authority for an individual action at law by a stockholder for damage to his investment. It is authority for an action in equity by a member of the corporation to restrain illegal acts planned by faithless directors of the corporation, the illegality stemming from the design to injure the minority investment. The relief was not a disbursement of moneys to the personal purse of the stockholder, but restraint of the faithless directors from effecting damage to the corporation and through the corporation, the stockholder’s investment — quite a different matter. In that situation, in equity, it makes no procedural or substantive difference whether the action is brought in the individual name of the stockholder, or derivatively in the name of the corporation. Either way the corporation and only the corporation benefits directly from the relief granted. (However, the Kavanaugh case does present a striking parallel in support of the second and derivative cause of action, despite the absence of any allegation that there was a contract fiviug a term for the endurance of the corporation.)
Involved is no mere question of historical or procedural precedents. Nor is the question one merely of alternative remedies which will lead to substantially the same results. Under the statutes providing for dissolution and appraisal of the interests of dissenting stockholders (Stock Corporation Law, § 20 et seq.; § 105 et seq.) a disadvantaged stockholder has provided for him the means to capture the cash value of his investment. In that connection all factors going to the value *271of that interest may be considered. When damage is inflicted on the corporation, as distinguished from the stockholder’s own interest, the mode of relief and the quantity of damages will be related to the corporation, not only to the time of the wrongful act but projected into the future to cover misuse or waste of corporate assets. If the stockholder is given an individual cause of action at law with respect to that misuse or waste of corporate assets, his rights, too, are projected into the future, although, as is seen in this case, he neither claims nor establishes such right to continuance. Consequently, to confuse the remedies is to confuse different substantive rights.
Of course, if there is any doubt whether plaintiff has some cause of action based on an individual right, he should be granted leave to replead. This is particularly the situation when it is recognized that the stockholders’ agreement is not a part of the record or the pleading. Yet the majority position rests upon inferences flowing from an agreement not before the court and concerning which there are no allegations of breach.
Accordingly, so much of the order dismissing the first cause of action should be affirmed, on the law, and so much of the order denying the motion to dismiss the first affirmative defense to the first cause of action should be affirmed as academic.
Botein, P. J., Rabin, Valente and Bergan, JJ., concur in Per Curiam, opinion; Breitel, J., dissents in opinion.
Order reversed on the law so as to deny defendants’ motion to dismiss the first cause of action and to grant plaintiff’s motion to dismiss the affirmative defense thereto, with leave to replead, if so advised, with costs to abide the event.
Settle order.