261 A.D. 996 | N.Y. App. Div. | 1941
Action in equity to reform an agreement, to enjoin the individual defendants from selling plaintiffs’ right, title and interest in and to certain shares of stock of the respondent corporation and to compel the issuance of such stock to plaintiffs. Defendants interposed an “ amended ” answer setting up as a separate defense the sale of the stock to a thud party after the service of the complaint. Plaintiffs appeal (1) from an order granting defendants’ motion to dismiss the complaint on the ground that the subject-matter thereof has become academic, and from the judgment entered thereon; and (2) from an order denying plaintiffs’ motion to strike out the amended answer on the ground that it is, in fact, a supplemental answer served without leave of the court, and granting defendants’ cross-motion to permit the “ amended ” answer to remain as a supplemental answer nunc pro tunc. Order granting defendants’ motion to dismiss the complaint, and the judgment entered thereon, reversed on the law, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. In our opinion, despite the alleged sale set forth in the answer, the complaint states a good cause of action in equity. Order denying plaintiffs’ motion to strike out the “ amended ” answer and granting defendants’ cross-motion to permit the amended answer to remain as a supplemental answer, affirmed, without costs. Lazansky, P. J., Hagarty, Johnston, Taylor and Close, JJ., concur.