Opinion
Argued February 20, 1981
Decided April 7, 1981
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, DE FOREST C. PITT, J.
Warner M. Bouck and Herbert P. Jacoby for appellants.
Michael F. Bergan for respondents.
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs, on the appeal by the corporate defendant. The appeal by the individual defendants should be dismissed upon the ground that they were not aggrieved by the modification at the Appellate Division which dismissed the counterclaim asserted only on behalf of the corporate defendant. (See CPLR 5601, subd [a], par [iii].)
We agree with the court below that there is no basis upon which to imply as a condition to the parties' contract an obligation on plaintiffs' part to report taxable income received from the defendant corporation in any particular way — whether as ordinary income or as capital gain. (Cf. Rowe v Great Atlantic Pacific Tea Co., 46 N.Y.2d 62; Wood v Duff-Gordon, 222 N.Y. 88.) We only note that, inasmuch as the corporate defendant failed to raise the issue, we do not address the propriety of the Appellate Division's dismissal of defendants' counterclaim even though that relief was not requested by plaintiffs in their motion for summary judgment.
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur in memorandum.
On appeal by the corporate defendant: Order affirmed, with costs.
On appeal by the individual defendants: Appeal dismissed, without costs.