
    Leo Finkenberg, Respondent, v. Moses Levinson et al., Appellants.
    
      Bills, notes and checks — action to recover on promissory note —, defense of payment — counterclaims.
    
    
      Finkenberg v. Levinson, 192 App. Div. 956, affirmed.
    (Submitted March 8, 1922;
    decided March 24, 1922.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department; entered June 14, 1920,' unanimously affirming a judgment in favor of plaintiff entered upon a verdict. The action was to recover upon a promissory note. ' The answer, admitting the making and delivery of a note, set up an affirmative defense and two counterclaims. The affirmative defense was to the effect that the note was given for twenty-five shares of capital stock of a corporation in which the respondent and appellants were to be the sole stockholders; that subsequently the parties agreed to divide the corporation’s surplus, amounting to $.9,692.50, one-third to appellants and two-thirds to respondent; that accordingly $3,230.83 were credited to appellants on the corporation’s books, but that respondent caused this credit to be removed and obliterated from the books, and caused the inventory sheets to be changed so as to show less than the true total, and wrongfully took and carried away and misappropriated to his own use property of defendants, representing in fact, amount and value said credit and property of defendants then due to defendants from said corporation, in the sum of $3,230.83; by reason whereof defendants claim the note was paid and discharged. The first counterclaim alleged the misappropriation by respondent of $500 delivered to him by appellants for payment to the corporation. The second counterclaim was for damages upon the ground that respondent had agreed to procure the corporation to pay appellants a certain salary and share of its net profits for a specified period, and to enter into a contract employing appellants for an additional period of five years at a salary and share of profits, and that respondent repudiated his agreement and failed and refused to procure the corporation' to pay appellants the agreed share of profits' or to employ appellants for five years on the terms stated. Respondent’s ‘reply denied the material allegations of the counterclaims, and pleaded the Statute of Frauds and other defenses in respect of the second counterclaim.
    
      Sam L. Cohen for appellants.
    
      Isaac N. Jacobson and Samuel I. Goldberg for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Hogan, Pound, McLaughlin, Crane and Andrews, JJ. Not voting: Cardozo, J.  