Whitaker v. Kowalski , 327 N.Y.S.2d 305 ( 1971 )

Judgment unanimously modified on the facts in accordance with the memorandum and as modified affirmed, without costs. Memorandum: In this action to recover the unpaid balance under a contract for the purchase of plaintiff’s interest in a corporation operating an apartment complex, the record clearly supports the finding of money due to plaintiff in the amount of $9,657. There is also support for an allowance to defendants on their counterclaim of $3,663.39. This represents amounts paid by defendants on corporate obligations in excess of obligations which appear on the schedule furnished to the buyers with the purchase contract and established by documentary proof corroborating defendants’ testimony at the trial. In addition, defendants are entitled to a credit of $3,019.56, which is the discrepancy between the asset listed on the schedule attached to the purchase contract as cash on hand of $4,000 and the amount of cash actually in the corporation’s possession and turned over to the receiver when the assets were transferred to the receiver shortly before the purchase contract was executed. The judgment in favor of plaintiff should be reduced to $2,974.05. (Appeal from judgment of Monroe Trial Term in action for payment of agreed balance.) Present—Del Vecchio, J. P., Marsh, Moule, Cardamone and Henry, JJ.