Opinion
February, 1919.
Present — Mills, Putnam, Blackmar, Kelly and Jaycox, JJ.
The referee's fourth finding that defendants received for plaintiff's shares $92,355 was erroneous, because of Justice Clark's holding that the increased capital of 14,000 shares was binding on plaintiff, but the stipulation of the attorneys of April 6, 1916, omitted to correct it. This court also treated the marking down of the stock to $25 a share in defendant's basis of sale as an unreal figure by which the stock was depressed to the advantage of other securities controlled by defendants, and, therefore, that $25 a share was less than defendants in truth received for plaintiff's stock. Therefore, our order of affirmance (See 185 App. Div. 249) must be resettled so as to show clearly our attitude as to such fourth finding by the learned referee.
Order to be settled on notice. The motion for leave to appeal to the Court of Appeals is reserved until resettlement of our order.