Bayer v. Yuckman

281 A.D. 860 | N.Y. App. Div. | 1953

Judgment after trial in favor of defendants, dismissing three causes of action contained in the complaint, modified by reversing the dismissal of the third cause of action and granting judgment therefor in favor of the plaintiffs, and directing an accounting for salaries received by defendant Jules Yuckman in excess of the rate of $10,000 per annum. The written contracts clearly establish the agreement for a salary of $10,000 per annum. The evidence offered by defendant Jules Yuckman to prove a change in the arrangement was insufficient as a matter of law, and inadequate and incredible as a matter of fact. Yuckman continuously had the advice of counsel, was the one who offered the documentation of arrangements, and was the one in effective control of the records of the corporation. It is unbelievable that under the circumstances he would not have obtained a writing to evidence the transaction. Moreover, the written arrangement stipulated that any modification must be in writing. The added testimony that Yuekman’s bookkeeper, at his instructions, showed the larger cheeks to his associates is even less credible, in view of his claim that he had discussed the increase in salary with his associates beforehand. The nature of the relationship among the associates, the weighing of Yuekman’s interest by preferred stock, the fact that he had not fully paid for his preferred stock, and the rather casual rearrangement of the terms of the agreement as testified, make incredible the claimed increase in salary. With respect to the other issues in the case plaintiffs either failed to sustain their claims or, on the contradictory proof, Special Term was justified in making the findings that it did. Judgment unanimously modified as above indicated; with respect to the excess salary paid, an accounting is directed to be had before the referee appointed by Special Term, and, as so modified, the judgment is affirmed, with costs and disbursements of this appeal to the appellants. Settle order on notice. Present — Peck, P. J., Callahan, Breitel, Foster and Bergan, JJ.