Mooney v. Mooney

Judgment reversed on the law and the facts and a new trial granted, with costs to abide the event, on the ground that the findings of fact and conclusions of law based thereon, in so far as they assume that defendant, is the owner of the 55 shares of stock in the name of Donaldson, are not sustained. The basis of plaintiff’s cause of action, and her own testimony, is that the agreement between herself and her husband was that each was to have an equal number of shares of the total 500 shares of stock authorized. As the decree stands the defendant would not receive an equal number of shares unless the stock of Donaldson was *907acquired by him, and there is no evidence that it has been so acquired. The decree as made is, therefore, contrary to the agreement as testified to by the plaintiff herself. Neither Donaldson nor the corporation is a party to the action, and the judgment is against the weight of the evidence. Kelly, P. J., Manning, Kelby, Young and Kapper, JJ., concur. Settle order on notice.