Weidner v. Walsh , 108 N.Y.S.2d 797 ( 1951 )

No fair and reasonable interpretation of the evidence could support a finding that the amount of the corporation’s potential liability for taxes, as set forth in the balance sheet of June 30, 1947, in the sum of $32,836.30, as a reserve for such purpose within the intent of the contract, was other than a liability to be considered in computing the net worth of the corporation, unreduced by the fact that, because of losses during the second- half of the year, the actual tax liability for the year was later determined to be less than $6,000; or a finding that the purchasers, in consummating the transaction, waived the claims asserted in the counterclaims or brought about an accord and satisfaction. Accordingly, the court should have dismissed the first, third and fourth defenses set forth in the reply of plaintiffs and the escrow agent, in addition to the second, which pleaded payment and which the court dismissed. Further error was committed in excluding defendants’ evidence as to what the value of the corporation’s inventory was on January 1, 1947, together with accretions and detractions up to the date when the net worth of the corporation was required to be not less than $75,000. We are also of the opinion that the finding, implicit in the verdict, that the three checks in the total amount of $9,429.60, representing alleged accrued earnings of the plaintiffs, which were drawn out of the corporation’s bank account at the time of the consummation of the transaction, were not to be considered as a reduction of the net worth of the corporation, was contrary to the evidence. Johnston, Acting P. J., Sneed and Wenzel, JJ., concur; Adel and MacCrate, JJ., concur in result.