Kalish v. Tru-Fit Novelty Manufacturing Co. , 270 A.D. 1028 ( 1946 )

In a consolidated action, judgment rescinding the transfer of certain stock to appellant and dismissing, upon the merits, the complaint in a stockholder’s action based upon the alleged ownership of said stock by appellant, modified on the law and the facts by inserting at the end thereof a new paragraph providing that “this judgment is without prejudice to such action as appellant may institute to recover from respondents the value of his services, if any, rendered up to the time of his illness, in excess of $185, which the record shows he received during that period.” As so modified, the judgment is unanimously affirmed, without costs. At the trial respondents, as a condition for the return of the stock, offered to pay appellant the fair and reasonable value of his services for the approximate period of three months that appellant worked. No evidence, however, was produced by any of the parties as to the value of such services, the trial court made no determination thereon, and the judgment as appealed from does not make any provision therefor. The failure to go forward with evidence on this subject may have been the fault of appellant, but as a matter of equity and. fair dealing, the respondents should be held to the offer which they made. Present — Lewis, P. J., Carswell, Adel, Aldrich and Nolan, JJ.