The complaint failed to allege that a demand had been made on the board of directors for remedial action, or facts sufficient to justify a conclusion that such a demand would be futile. Dismissal of the complaint was therefore proper on the ground it did not state facts sufficient to constitute a cause of action ( Marco v. Sachs, 269 App. Div. 845, affd. 295 N.Y. 642). We think however the Special Term should have permitted the service of an amended complaint in connection therewith. Order dismissing the complaint modified by permitting the appellant to serve an amended complaint within ten days after the entry of an order herein, and as so modified affirmed, without costs. Appeal from order denying cross motion to amend complaint dismissed, without costs. Foster, P.J., Coon, Halpern and Zeller, JJ., concur.