Fiore v. Fiore

New York Court of Appeals

Fiore v. Fiore

389 N.E.2d 138, 46 N.Y.2d 971, 415 N.Y.S.2d 826, 1979 N.Y. LEXIS 1891

CourtNew York Court of Appeals

DecidedMarch 22, 1979

StatusPublished

Cited by28 cases

This text of 389 N.E.2d 138 (Fiore v. Fiore) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fiore v. Fiore, 389 N.E.2d 138, 46 N.Y.2d 971, 415 N.Y.S.2d 826, 1979 N.Y. LEXIS 1891 (N.Y. 1979).

Pincite

Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

The plaintiff notes that the stated purpose of the 1953 agreement is "to keep the ownership of the stock of the Corporation in themselves [i.e., the individual parties] and their surviving spouses and sons so far as is possible and circumstances will permit” and that in certain instances this purpose would be frustrated if the sons are not bound by its terms. The question, however, is not whether the agreement is imperfect but whether it is ambiguous. The courts may not rewrite a term of a contract by "interpretation” when it is clear and unambiguous on its face.

The phrase "individual parties” is not ambiguous as the plaintiff contends. The preamble identifies four parties to the agreement — the three Fiore brothers and "Fiore Brothers, Inc. * * * hereinafter termed the 'Corporation’ ”. Thereafter the agreement distinguished between the "Corporation” and the "individual parties”. Logically the phrase "individual parties” could only refer to the three Fiore brothers who together with the "Corporation” were the four parties to the agreement.

. Indeed the agreement leaves no room for doubt because it specifically identifies the "individual parties” as "the sole owners of all of the shares of the capital stock of Fiore Brothers, Inc., aforesaid, amounting in all to one hundred and fifty (150) shares” and then itemizes the shares held by the three brothers individually which together total 150 shares. There is then no merit to the plaintiff’s contention that the phrase "individual parties” is ambiguous and could apply not only to the signatories of the agreement, but also to their sons.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur in memorandum.

[974]*974Order affirmed.

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OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

The plaintiff notes that the stated purpose of the 1953 agreement is "to keep the ownership of the stock of the Corporation in themselves [i.e., the individual parties] and their surviving spouses and sons so far as is possible and circumstances will permit” and that in certain instances this purpose would be frustrated if the sons are not bound by its terms. The question, however, is not whether the agreement is imperfect but whether it is ambiguous. The courts may not rewrite a term of a contract by "interpretation” when it is clear and unambiguous on its face.

The phrase "individual parties” is not ambiguous as the plaintiff contends. The preamble identifies four parties to the agreement — the three Fiore brothers and "Fiore Brothers, Inc. * * * hereinafter termed the 'Corporation’ ”. Thereafter the agreement distinguished between the "Corporation” and the "individual parties”. Logically the phrase "individual parties” could only refer to the three Fiore brothers who together with the "Corporation” were the four parties to the agreement.

. Indeed the agreement leaves no room for doubt because it specifically identifies the "individual parties” as "the sole owners of all of the shares of the capital stock of Fiore Brothers, Inc., aforesaid, amounting in all to one hundred and fifty (150) shares” and then itemizes the shares held by the three brothers individually which together total 150 shares. There is then no merit to the plaintiff’s contention that the phrase "individual parties” is ambiguous and could apply not only to the signatories of the agreement, but also to their sons.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur in memorandum.

[974]*974Order affirmed.

Stanley C. Cruden, Philip Zerylnick, Individually and on Behalf of a Class of Persons Similarly Situated, and Sibalin, S.A., a Corporation v. The Bank of New York, a Corporation Irving Trust Company, a Corporation Sterling National Bank & Trust Company of New York, a Corporation Bankers Trust Company, a Corporation Rockwood National Corporation, a Corporation, and James E. Townsend, an Individual, the Bank of New York, a Corporation Irving Trust Company, a Corporation Sterling National Bank & Trust Company of New York, a Corporation, and Bankers Trust Company, a Corporation, Stanley C. Cruden, Individually and on Behalf of a Class of Persons Similarly Situated Philip Zerylnick, and Sibalin, S.A., a Corporation v. Irving Trust Company, a Corporation Rockwood National Corporation, a Corporation James E. Townsend, an Individual the Bank of New York, a Corporation Sterling National Bank & Trust Company of New York, a Corporation Bankers Trust Company

957 F.2d 961 (Second Circuit, 1992)

Cruden v. Bank of New York

957 F.2d 961 (Second Circuit, 1992)

Dorodea & S. Building Co. v. State

171 A.D.2d 866 (Appellate Division of the Supreme Court of New York, 1991)

Papa Gino's of America, Inc. v. Plaza at Latham Associates

170 A.D.2d 869 (Appellate Division of the Supreme Court of New York, 1991)

Cohen v. Spodek

168 A.D.2d 533 (Appellate Division of the Supreme Court of New York, 1990)

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Bluebook (online)

389 N.E.2d 138, 46 N.Y.2d 971, 415 N.Y.S.2d 826, 1979 N.Y. LEXIS 1891, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fiore-v-fiore-ny-1979.

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