Smith v. Gross, Shuman, Brizdle & Gilfillan, P. C.

249 A.D.2d 893, 671 N.Y.S.2d 400, 1998 N.Y. App. Div. LEXIS 4965

Opinion

—Order and judgment unanimously affirmed with costs. Memorandum: Supreme Court properly granted defendants’ cross motion for summary judgment dismissing the complaint. The record establishes that the minimum subscription of 7,000 shares of preferred stock of Triad Manufacturing Group, Inc. (Triad), was met, which triggered defendants’ obligation as escrow agent to release the funds (see, Farago v Burke, 262 NY 229, 233; Matter of Kaplan v Shaffer, 112 AD2d 369, 370). The fact that one of the checks may have bounced or was not immediately deposited by Triad has no bearing on the issue whether the requisite number of shares was sold by the closing date. Upon acceptance of the subscriptions, all stock sales were complete and irrevocable on May 3, 1991, and Triad had an enforceable debt against the subscribers in the event of nonpayment (see, Stoddard v Lum, 159 NY 265, 273; Allen v Ryan, 219 App Div 634, 635-636, affd 246 NY 609). (Appeal from Order and Judgment of Supreme Court, Erie County, Whelan, J. — Summary Judgment.) Present — Denman, P. J., Green, Pine, Callahan and Fallon, JJ.