Ochs v. Fitzmorris

In an action inter alia to compel the individual defendants to turn over corporate records to plaintiff, (1) he appeals from an order of the Supreme Court, Suffolk County, entered July 16, 1974, after a hearing, which, inter alia, required him to specifically perform part of a certain stipulation of settlement and (2) the individual defendants cross-appeal from so much of the said order as failed to require plaintiff to specifically perform the entire stipulation of settlement. Order affirmed, with costs to respondents-appellants. Under the facts of this case, it would be inequitable to permit plaintiff to be freed from that portion of the stipulation which he is able to perform. As to the balance of the *584obligations incurred by him, which involve the issue of whether corporate assets would be so depleted as to render the corporation insolvent, the record is insufficient to determine whether the corporation, now inactive, has creditors who would be adversely affected by the transfers contemplated in the stipulation. Special Term therefore properly held that issue in abeyance pending further proceedings. Rabin, Acting P. J., Martuscello, Latham, Margett and Shapiro, JJ., concur.