Opinion
April 13, 1971
Order of the Supreme Court, New York County, entered July 20, 1970, denying summary judgment on the issue of liability, unanimously reversed, on the law, the motion granted and an assessment directed. Appellant shall recover of respondent $50 costs and disbursements of this appeal. The action is based on a stock repurchase agreement, which agreement stands admitted. Defendant contends that the first notice under the contract was untimely. However, this claim is not substantiated by any factual statements. The main contention is that the defendant is not personally liable since the intention was to obligate the corporation. This contention cannot be maintained since the contract is a personal one undertaken by the defendant with no suggestion of any corporate liability. If the defendant acted on behalf of the corporation, that claim can be pursued in his third-party complaint. (See Cohn v. Lionel Corp., 21 N.Y.2d 559.) The question of damages is a proper concern in the assessment.
Concur — Capozzoli, J.P., McGivern, Nunez, Kupferman and McNally, JJ.