Cohn v. Schultz-Costlow Co.

O’Malley, J.

The nature of the action and the substance of the allegations of the complaint are sufficiently set forth in the opinion of Mr. Justice McAvoy. Assuming the action is not within the principle of our memorandum decision in Carton v. Rubel Corp. (228 App. Div. 689), we are of opinion that the complaint shows a contractual obligation to redeem. It is. alleged that the defendant has refused not only to declare dividends, but also to comply with a request that the stock “ be redeemed in accordance with the terms of the certificate of stock.” It must be assumed from this allegation that the obligation to redeem was a part of the stock certificate and passed as a part thereof to subsequent holders. Whether plaintiffs’ remedy, predicated upon such obligation, is one in equity or is by an action at law for damages, need not now be determined. In either aspect the complaint as a mere pleading is sufficient.

It follows that the order appealed from should be affirmed, with ten dollars costs and disbursements, with leave to defendant to answer within twenty days from service of order upon payment of said costs.

Finch and Martin, JJ., concur; Dowling, P. J., and McAvoy, J., dissent.