Waddle v. Cabana

• Decision Date: 09 January 1917
• Citation: 220 N.Y. 18,114 N.E. 1054
• Parties: WADDLE v. CABANA.
• Court: New York Court of Appeals Court of Appeals

220 N.Y. 18

114 N.E. 1054

WADDLE

v.CABANA.

Court of Appeals of New York.

Jan. 9, 1917.

Appeal from Supreme Court, Appellate

Action by Edna P. Waddle, as administratrix,

Action by Dena P. Waddle, as administratrix, etc., against Oliver Cabana, Jr. From a judgment of the Appellate Division, Fourth Department (169 App. Div. 968,154 N. Y. Supp. 1149), reversing judgment of the Erie Equity Term, which required defendant to perform his contract to sell and transfer to plaintiff's intestate 100 shares of stock, and dismissing the complaint on the merits, plaintiff appeals. Reversed, etc.

Cuddeback, J., dissenting.Carlton E. Ladd, of Buffalo, for appellant.

Daniel J. Kenefick, of Buffalo, for respondent.

POUND, J.

This is an appeal from the Appellate Division, Fourth Department, unanimously reversing a judgment of the Erie Equity Term, directing that defendant sell and transfer to the plaintiff, as administratrix of the estate of her deceased husband, 100 shares of the capital stock of the corporation known as the Buffalo Specialty Company, at the agreed price of $250 the share, in specific performance of a contract therefor entered into between respondent and the appellant's intestate in his lifetime, by the terms of which appellant's intestate was to execute his promissory note for $25,000, payable $2,500 annually, the stock to remain as collateral security for the indebtedness until it was fully paid.

The contract is not in dispute. The only stock in the corporation not owned by respondent consists of 11 out of 5,000 shares. Respondent has entire control of the business; success therein depends largely upon the success of specialties manufactured by secret processes. Appellant's intestate was the general manager of the company. The contract was made on the 1st day of August, 1912, and he died on the 8th day of September, States ‘that the said stock has no known or ascertained provides as follows:

‘Ordered, that the judgment so appealed from be, and the same hereby is, reversed, and judgment directed for the defendant, dismissing the complaint, with costs, including the costs of this appeal, and the fifth finding of fact, so far as it states ‘that the said stock has no known or ascertained market value,’ is hereby disapproved. Held, that the plaintiff did not make a case for specific performance, or show that she did not have an adequate remedy at law for damages.'

As the answer admits, in substance, that the stock had no market value, and that any price placed upon the same has been by private agreement, and as the evidence and the findings fully sustain the allegations of the complaint in this regard, the reasons for the reversal are not clear from the statement of the court below that it disapproves the finding set forth in its order, and holds that plaintiff had not made out a case for specific performance. The necessary inference seems to be that the Appellate Division was not satisfied on the evidence with this finding of the trial court, and by disapproving it intended to leave the appellant without findings sufficient to make out a case for specific performance, because it would not then appear that she did not have an adequate remedy at law. It left undisturbed the findings that the stock of the Buffalo Specialty Company was almost entirely owned by the respondent; that it had a large, special, and peculiar value, and that it could not be obtained on the market.

[1][2][3][4] On an appeal from a judgment entered on the decision of the trial court without a jury, the Appellate Division may deal with the evidence as the trial court should have done and may render final judgment accordingly cordingly without granting a new trial. Code Civ. Pro. § 1314; Lamport v. Smedley, 213 N. Y. 82, 106 N. E. 922;Acme Realty Co. v. Schinasi, 215 N. Y. 495, 109 N. E. 577, L. R. A. 1916A, 1176. In this case, in the exercise of its original jurisdiction, it disapproved a finding of fact, as appears on the face of the order (Code Civ. Pro. § 1338), and then reversed the judgment. It follows that in this court the question of law is presented-this being a judgment of reversal and not of affirmance-whether there was any evidence to permit a finding that the stock had not a known or ascertainable market value (Livingston v. City of Albany, 161 N. Y. 602, 604,56 N. E. 148), for the court below could not disapprove the finding of the trial court except on the evidence. The case is destitute even of the contention that the stock had any known or ascertainable market value. No price therefor has been established by public sales in the way of ordinary business. No other property of the same kind has been the subject of purchase and sale. Sloan v. Baird, 162 N. Y. 327, 330,56 N. E. 752. The disapproval of the finding of the trial court was therefore erroneous, and, as matter of law, the finding should be reinstated. The findings are sustained by the evidence and sustain the judgment. It follows that the judgment of the Appellate Division should be reversed and that of the Trial Term affirmed, but it does not appear that the Appellate Division reversed in the exercise of discretion. In an action for specific performance of a contract relating to personal property, the case presented may be a proper one for such relief in the sound discretion of the court, but not as matter of right (Butler v. Wright, 186 N. Y. 259, 78 N. E. 1002), and if the judgment below had proceeded on the theory that no case had been made out to justify the exercise of discretion in appellant's favor, no question of law would remain. The Appellate Division was authorized to reverse in its discretion, upon a consideration of the facts, but it was not bound or authorized to do so as a question of law. Butler v. Wright, supra. The reversal was because the facts found by the Appellate Division were held to be insufficient to sustain...