Brown v. Kann — 248 N.Y. 571

Majority

p. 571

Walston H. Brown, Individually and as Trustee for Stockholders of The California Company, Plaintiff, v. William L. Kann et al., Respondents. Eva R. I. Brown, as Committee of the Estate of Walston H. Brown, an Incompetent Person, Appellant.

Headnote

Contract — rescission — counterclaim — action to rescind contract for sale of entire stock of corporation free of incumbrances against stock or property of corporation.

Brown v. Kann, 221 App. Div. 874 , affirmed.

(Argued May 1, 1928;

decided May 29, 1928.)

Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered December 3, 1927, affirming a judgment in favor of defendants entered upon the report of a referee. The action was to rescind a contract whereby plaintiff individually contracted to sell the whole capital stock of the California Company, a corporation owning certain lands and water rights in California, and agreed to turn over

p. 572

the property free from incumbrances either against the stock or the property. The defendant alleging that in judicial proceedings in California the water rights of the corporation had been adjudged to be a public utility, suspended payment under the contract, whereupon this action was begun. Defendant counterclaimed for damages.

Vincent H. Rothwell, Harold Harper and Murray F. Johnson for appellant.

William L. Wemple and William J. O’Shea, Jr., for respondents.

Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Andrews, Lehman, Kellogg and O’Brien, JJ. Not sitting: Crane, J.