Opinion
February 12, 1970
Appeal from the Onondaga Special Term.
Present — Goldman, P.J., Marsh, Witmer, Moule and Bastow, JJ.
Judgment unanimously affirmed. Order unanimously modified in the exercise of discretion and as modified affirmed, with costs to respondents-appellants Abrams et al., and matter remitted to Onondaga Special Term for further proceedings in accordance with the following memorandum: In this stock appraisal proceeding under the Business Corporation Law, the court-appointed appraiser found the fair value of the stock in question to be $22.50 per share. On 51,931 shares, this amounted to an increase of $142,810.25 over the petitioner's offer of $19.75 per share. The court approved the appraiser's report but denied the shareholder's motion to have the corporation assesed with the cost of their expert and counsel fees. We find that the award of $22.50 per share is supported by the evidence and should be affirmed. Since the fair value of the shares materially exceeded the amount which the corporation offered to pay, such fees should be assessed against it. (Business Corporation Law, § 623, subd. [h], par. [7].)