24 A.D.2d 992 | N.Y. App. Div. | 1965
In an action to compel specific performance of an alleged agreement to sell shares of stock, in which defendant asserted counterclaims to recover the purchase price, etc., defendant appeals from an order of the Supreme Court, Kings County, entered March 4, 1965, which: (1) granted plaintiff’s motion (a) to dismiss her counterclaims for insufficiency; (b) to discontinue the action, without prejudice; (c) to vacate defendant’s notice to arbitrate; and (2) denied defendant’s cross motion for summary judgment on her counterclaims. Defendant also appeals from the judgment, entered March 16, 1965, pursuant to said order. Order modified on the law and the facts as follows: (1) by striking out its first and second decretal paragraphs; (2) by substituting therefor a new decretal paragraph denying plaintiff’s motion to discontinue the action; (3) by amending its third and fourth decretal paragraphs so as to grant plaintiff’s motion to dismiss the second or “ further ” counterclaim only, without costs; severing said counterclaim only; and directing entry of judgment dismissing said counterclaim only, without costs; (4) by striking out its sixth decretal paragraph, denying defendant’s motion for summary judgment; and (5) by substituting therefor a decretal paragraph granting defendant’s motion for summary judgment to the extent of directing plaintiff to pay, in exchange for defendant’s decedent’s stock, the book value thereof in accordance with the sixth and thirteenth paragraphs of the stockholders’ agreement annexed to the complaint, the said value to be determined at a hearing to be held upon a date to be fixed upon application of cither or both parties. As so modified, the order is affirmed, with $10 costs and disbursements to defendant. Judgment vacated, without costs, and with leave to plaintiff to enter a new judgment in conformity herewith, dismissing the second or “ further ” counterclaim designated in defendant’s answer only. In November, 1945, prior to the formation of a close corporation, plaintiff and defendant’s intestate (the sole and equal stockholders) entered into a stockholders’ agreement which provided, in part, that upon the death of either party the survivor “ shall have the right to purchase the stock of the deceased from the estate of the deceased at any time within forty-five (45) days from the date of death”, and that: “ The purchase price for said stock shall be the book value thereof as reflected in the corporate books ”, In November, 1962, within the 45-day period following the death of defendant’s intestate, plaintiff, without specifying any sum of money, generally notified the defendant by letter that he thereby exercised his right to purchase her decedent’s stock at the book value provided by the stockholders’ agreement. In March, 1963 plaintiff informed defendant that the book value of her decedent’s stock was $15,619.26; and he offered to pay that sum together with a corporate debt owing to her decedent. Plaintiff and defendant, however, were unable to agree upon the book value of the stock. Defendant, rejecting plaintiff’s computation of book value, contended that the value fixed in the corporate books for good will was inadequate, that a physical inventory of corporate assets had not been made, and that certain corporate assets were not reflected in the corporation’s books. Plaintiff thereafter commenced this action for specific performance but approximately
