Whitaker v. Kowalski — 33 N.Y.2d 661

Majority

p. 661

Andrew R. Whitaker, Appellant, v. John P. Kowalski et al., Respondents.

Argued September 20, 1973;

decided October 11, 1973.

p. 663

Douglas S. Gates, Henry W. Williams, Jr. and David C. Boysen for appellant.

Paul G. Stolsenfels for respondents.

Order modified, without costs, by reinstating the judgment of Supreme Court, Monroe County, and, as so modified, affirmed. The record does not support the finding by the Appellate Division that there actually was a “ discrepancy between the assets listed on the schedule attached to the purchase contract as cash on hand of $4,000 and the amount of cash actually in the corporation’s possession and turned over to the receiver * * * shortly before the purchase contract was executed.” This item was part of defendants’ counterclaim and, as such, the burden of proving same was upon them, which they failed to do.

Concur: Chief Judge Fuld and Judges Burke, Breitel, Jasen, Jones and Wachtler. Taking no part: Judge GtAbrielli.