267 A.D. 163 | N.Y. App. Div. | 1943
It was error to hold that the validity of the mortgage involved herein had been conclusively established in the judgment creditor’s action. No judgment had been entered in that action, and the findings of fact and conclusions of law therein were not res judicata. (Pinkus v. Pinkus, 230 App. Div. 791.)
Whether the stockholders holding the required number of shares had in fact consented to the execution of the mortgage, although the certificate required by section 16 of the Stock Corporation Law was not attached, may be determined upon a new trial.
The determination of the Appellate Term should be modified by directing a new trial, and as so modified, affirmed, with costs in this court and in the Appellate Term to abide the event.
Townley, Glennon, ITntermyer, Dore and Callahan, JJ., concur.
Determination unanimously modified by directing a new trial, and as so modified, affirmed, with costs in this court and in the Appellate Term to abide the event.