| N.Y. App. Div. | Oct 15, 1932
Order as resettled granting reargument, and on reargument denying motion to dismiss complaint as against defendant Sawyer-Hornstein, Inc., on the ground that it appears on the face thereof that it does not state facts sufficient to constitute a cause of action, reversed on the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. We are of opinion that there is no ambiguity in the written contract upon which plaintiff seeks to base its cause of action. The agreements of June eighth and May thirty-first must be read together to determine the liability of the parties under their mutual guaranties. The defendants were selling and the plaintiff was buying the stock of a corporation known as Card & Poster Co., Inc. The purchase price was determined by totaling the assets of the Card & Poster Co., Inc., and deducting the total liabilities as of the close of business on the 31st day of May, 1929. Clearly, the guaranties in the agreement were made to safeguard against errors in bookkeeping. There is no complaint of error in the schedule of account, but plaintiff has pleaded a cause of action based upon the- contract that the accounts were not liquidated at their full value. This theory cannot'be sustained since the contract is free from ambiguity. Lazansky, P. J., Hagarty and Carswell, JJ., concur; Young and Tompkins, JJ., dissent and vote to affirm.