Order of Special Term reversed on the law and on the facts and the motion to strike the answer of the corporate defendant and the appearance of counsel in its behalf is granted with leave, in the exercise of discretion, to the said corporation to appear, answer and otherwise defend by independent counsel if it is so advised within 20 days from the entry of the order, with $20 costs and disbursements to the appellant. While a corporation is usually a passive litigant in a stockholder's derivative action, it may well be that the equitable relief sought in the complaint requires an appearance and answer by the corporate defendant. However, such appearance must be by independent counsel whose interests will not conflict with those of the individual defendant.
Concur — Botein, P.J., Breitel, M.M. Frank, Valente and Stevens, JJ.