Goodman v. Kling

Headnote

Goodman v. Kling, 157 App. Div. 900 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered June 28, 1913, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court in an action to recover upon a promissory note. The answer sets forth three defenses:

First. That the note, prior to this action, was paid, satisfied and discharged. Second. That the note was given to secure part of the purchase price of twenty-five shares of stock, under an agreement that it was not tobe paid by the defendant, other than by the application of dividends, accruing upon his stock, and that the dividend earned by his stock greatly exceeds the amount, of the note, and that before it was indorsed to- the plaintiff, it was paid, satisfied and discharged out of the dividends. It further alleged that defendant has never received any dividends on his stock, other than by the application thereon, and that if the dividends already earned are not sufficient to pay the full amount, that he is entitled to have the note extended until such time as the accumulated dividends will be sufficient for that purpose. Third. He also alleges that the twenty-five shares of stock were

reasonably and fairly worth $8,000; that the corporation took possession of said stock after the note became due and payable, and has ever since retained possession thereof; that upon a fair sale or other disposition thereof, a considerable balance, after payment of the note, could have been realized to the defendant; that by taking possession of said stock, after the note became due and payable, the note was satisfied and discharged, the stock being of sufficient value for that purpose.