Opinion
March, 1930.
Judgment modified to contain a direction that Hugh Galbraith shall recover $409 and any further sum which he had paid since September 8, 1928, for fees and disbursements in relation to a certificate of membership No. 1129, in the New York Produce Exchange, and by adding at the end of the last paragraph, which concerns application for further relief, the following words: "Except as against the defendant Boutwell Milling Grain Company of Troy;" and the judgment, as so modified, is affirmed, without costs. Van Kirk, P.J., Davis, Whitmyer, Hill and Hasbrouck, JJ., concur. The findings of fact are modified, and new findings are made as follows: At the end of finding numbered VI there is added the following sentence, "including such title as Boutwell Milling Grain Company of Troy had to the certificate of membership in the New York Produce Exchange." The finding numbered IX as follows: "That on or about the 20th day of September, 1927, the defendant Boutwell Milling Grain Company of Troy, under the terms of the aforesaid written agreement, by instruments of sale and conveyance, assigned, sold, transferred and conveyed to the plaintiff its property, real and personal, the intention of the parties as to the sale of certificate of membership in the New York Produce Exchange being stated in the following letter, `Upper Hudson Rye Flour Mills of Troy, Troy, N Y Gentlemen: It is our intention to transfer to you by the Bill of Sale this day delivered to you and dated September 20th, 1927, membership in the Produce Exchange, if title to the same is in us. Sept. 20, 1927. Yours very truly, Boutwell Milling Grain Company of Troy, Inc., By F.E. Draper, Treasurer.'" The finding numbered X as follows: "The plaintiff and the defendant Boutwell Milling Grain Company of Troy completed the aforesaid agreement of purchase and sale." The finding numbered XXII as follows: "That between the date of the issuance of said certificate of membership, number 1129, and August 7, 1925, the Boutwell Milling Grain Company of Troy has paid out of the corporate funds all of the assessments and gratuities imposed by said Exchange upon said certificate of membership." The finding numbered XXIII as follows: "That the defendant Hugh Galbraith, between August 8, 1925, and September 8, 1928, had paid the sum of four hundred nine dollars for dues, assessments and other charges imposed by the New York Produce Exchange to keep said certificate alive." The finding numbered XXVII as follows: "That the defendant Hugh Galbraith has wholly failed, neglected and refused to deliver and assign said certificate of membership number 1129 to the plaintiff." The finding numbered XXX as follows: By adding at the end thereof: "That defendant Hugh Galbraith has a financial interest in certificate number 1129 in the New York Produce Exchange of four hundred nine dollars and for any further sums which he has paid to the New York Produce Exchange on account of his membership therein since September 8, 1928." In the event the parties cannot agree as to the payments made by the defendant Galbraith to the New York Produce Exchange, on account of said certificate, the amount thereof may be determined and settled on notice before Mr. Justice Staley at Albany.