
    First Department,
    January, 1954.
    (January 19, 1954.)
    John H. McIntyre, Appellant, v. States Marine Corporation et al., Respondents.
   Per Curiam.

The corporate defendant had a legal right based on plain contractual language to repurchase the plaintiff’s stock at the par value of $100,U00 upon the termination of plaintiff’s employment for any cause. That plaintiff’s services with the corporation are terminated is admitted. But the statement in plaintiff’s affidavit that the book value of the stock which the corporation is able to acquire by the naked fact of termination of plaintiff’s employment is $2,000,000, or twenty times the price named in the contract is not disputed by the opposing affidavits. The magnitude of this -differential may cast some obligation upon the corporation electing to terminate the employment which a court in equity might recognize. We do not suggest the equitable recognition of any such obligation, arising either from a constructive relationship of fiduciary in the control over employment and the large resulting consequences to property rights of both plaintiff and the corporation incident to such termination; or from a constructive trust arising from the relationship; or from rights which plaintiff might have as a stockholder to require distribution of growing corporate assets or the issuance of stock dividends to represent such growing assets.

These questions are not presented by the narrow pleadings before us; we do not, of course, pass upon them or upon their availability between these parties. We have discussed them because we feel that the action for the replevying of the physical possession of the stock, which is in the form of action before us, and in which defendants are clearly entitled to the judgment which they have been granted, may be too limited in scope to reach possible residual and underlying rights; and to indicate why we feel the affirmance should be without prejudice.

The order should be affirmed, with $20 costs and disbursements, but without prejudice to the maintenance against the corporate defendant by the plaintiff of such action for equitable relief as he may be advised to maintain.

Callahan, J. P., Breitel, Bastow and Bergan, JJ., concur.

Order unanimously affirmed, with $20 costs and disbursements to the respondents. [See post, p. 783.]  