236 A.D. 845 | N.Y. App. Div. | 1932
Order, in so far as it grants defendants’ motion for judgment dismissing the plaintiff’s complaint, and the judgment entered thereon, affirmed, with leave to plaintiff to serve an amended complaint within ten days from the entry of the order herein, on the ground that there is no allegation in the complaint that a bona fide offer of purchase of the assets of the corporation was made which the defendants accepted or were willing to accept. The defendants were not bound under the terms of the contract to accept any offer made for the physical assets, but it was only when they contemplated making a contract of sale thereof that they became obligated to offer to the plaintiff the right to purchase said assets at the same price as had been offered. In so far as the order grants the motion of the defendant Leo Eisemann for summary judgment on the first counterclaim contained in the answer the order is affirmed and the judgment entered modified by reducing the amount thereof to $2,576 and interest, and as so modified affirmed, but all proceedings subsequent to the entry of said judgment are stayed until after the trial of the action in the event that plaintiff amends his complaint as hereinbefore provided; and in so far as the order grants said defendant’s motion for summary judgment as to the second and third counterclaims and the judgment entered thereon, the said portions of the order and judgment are reversed on the law and the motion in that respect is denied, on the ground that there is a question of fact to be determined as to the intention of the parties at the time of the delivery of the notes in question. In the event that plaintiff amends the complaint under the leave granted, no costs of this appeal are allowed to any party. If plaintiff fails to amend, then the order and judgment as modified are affirmed, with costs to respondents. Lazansky, P. J., Kapper, Scudder, Tompkins and Davis, JJ., concur.