Schluter v. Wolfson

Appellate Division of the Supreme Court of New York

Schluter v. Wolfson

34 A.D.2d 772, 311 N.Y.S.2d 343, 1970 N.Y. App. Div. LEXIS 4816

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 19, 1970

StatusPublished

Cited by1 cases

This text of 34 A.D.2d 772 (Schluter v. Wolfson) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Schluter v. Wolfson, 34 A.D.2d 772, 311 N.Y.S.2d 343, 1970 N.Y. App. Div. LEXIS 4816 (N.Y. Ct. App. 1970).

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Opinion

Order and judgment (one paper) entered on September 19, 1969, unanimously modified on the law to the extent of denying plaintiff’s motion for summary judgment and vacating the judgment thereon and, as so modified, affirmed, without costs and without disbursements. This action is one to recover sums allegedly paid to Wolfson by the corporate defendants in excess of the amounts allowable pursuant to a stipulation of settlement of prior consolidated derivative actions. Paragraph 4 (b) of the stipulation provides as follows: “ The defendant Louis E. Wolfson will not receive from or be paid by Merritt or Revday, or any subsidiary of Merritt or Revday, any compensation for services rendered of any nature or by way of expense allowances, both or either, in excess of a total of $150,000 in any calendar year from the date hereof through December 31, 1968. From and after January 1, 1969, and until the liquidation or dissolution of Merritt, Revday, or any subsidiary, is completed, the defendant Louis E. Wolfson will not receive from or be paid by Merritt or Revday or any subsidiary of Merritt or Revday, any compensation for services rendered of any nature or by way of expense allowances, both or either in excess of a total of $50,000 in any calendar year.” This stipulation dated May 29, 1967 did not become final until April 24, 1968 since a further stipulation provided that consummation of the settlement must await final judgment of approval as well as the expiration of time to appeal. Paragraph 4 (b) of the stipulation presents a conflict between the phrase “from the date hereof ”, which is May 29, 1967, and “calendar year” which the court below interpreted as running from January 1, 1967. This presents an ambiguity. Defendants contend “from the date hereof” was purposely inserted in order to eliminate from the limitation on Wolf son’s compensation the sums he had already been paid. The interpretation of the court below would require defendants to repay excess compensation Wolfson allegedly received in that part of 1967 preceding the date of the stipulation. The intention of the parties therefore becomes relevant and a triable issue, however tenuous, is made out in this regard. Concur — Stevens, P. J., McGivern, McNally and Tilzer, JJ.

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Order and judgment (one paper) entered on September 19, 1969, unanimously modified on the law to the extent of denying plaintiff’s motion for summary judgment and vacating the judgment thereon and, as so modified, affirmed, without costs and without disbursements. This action is one to recover sums allegedly paid to Wolfson by the corporate defendants in excess of the amounts allowable pursuant to a stipulation of settlement of prior consolidated derivative actions. Paragraph 4 (b) of the stipulation provides as follows: “ The defendant Louis E. Wolfson will not receive from or be paid by Merritt or Revday, or any subsidiary of Merritt or Revday, any compensation for services rendered of any nature or by way of expense allowances, both or either, in excess of a total of $150,000 in any calendar year from the date hereof through December 31, 1968. From and after January 1, 1969, and until the liquidation or dissolution of Merritt, Revday, or any subsidiary, is completed, the defendant Louis E. Wolfson will not receive from or be paid by Merritt or Revday or any subsidiary of Merritt or Revday, any compensation for services rendered of any nature or by way of expense allowances, both or either in excess of a total of $50,000 in any calendar year.” This stipulation dated May 29, 1967 did not become final until April 24, 1968 since a further stipulation provided that consummation of the settlement must await final judgment of approval as well as the expiration of time to appeal. Paragraph 4 (b) of the stipulation presents a conflict between the phrase “from the date hereof ”, which is May 29, 1967, and “calendar year” which the court below interpreted as running from January 1, 1967. This presents an ambiguity. Defendants contend “from the date hereof” was purposely inserted in order to eliminate from the limitation on Wolf son’s compensation the sums he had already been paid. The interpretation of the court below would require defendants to repay excess compensation Wolfson allegedly received in that part of 1967 preceding the date of the stipulation. The intention of the parties therefore becomes relevant and a triable issue, however tenuous, is made out in this regard. Concur — Stevens, P. J., McGivern, McNally and Tilzer, JJ.

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Bluebook (online)

34 A.D.2d 772, 311 N.Y.S.2d 343, 1970 N.Y. App. Div. LEXIS 4816, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schluter-v-wolfson-nyappdiv-1970.

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