Whittemore v. Pasquale

8 A.D.2d 793, 187 N.Y.S.2d 53, 1959 N.Y. App. Div. LEXIS 7926

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 18, 1959
• Status: Published

Opinion

Order, dated March 13, 1959, and entered at Special Term, is unanimously modified on the law to the extent of denying defendants’ motion for summary judgment, by deleting the second decretal paragraph, and deleting the word “ granted ” in the first decretal paragraph and substituting therefor the word “ denied ”, and, as so modified, affirmed, without costs. While we express no views as to the merits of the action, the record permits the conclusion that there is a triable issue. Title to the premises in question was taken by the defendant corporation and was never vested in the individual defendants as record owners. According to the amended complaint and the bill of particulars, the plaintiff acknowledges the corporate defendant as the title owner, and seeks to compel the defendants to issue one third of the corporate stock to him, for which he alleges he made a demand. The amended complaint does not pray for a judgment such as is enumerated in section 120 of the Civil Practice Act. Under the circumstances a lis pendens was not authorized (see Bissell v. Taylor, 229 App. Div. 369). Concur — Botein, P. J., M. M. Prank, Valente, Stevens and Bastow, JJ.