
    George S. Daso, as Trustee for Thomas & Buckley Hoisting Company, Appellant, v. United Hoisting Co., Inc., Respondent.
   In an action to recover under a contract providing for the retirement of certain shares of the first preferred stock of the defendant, judgment for defendant, dismissing the complaint upon the merits, with costs, entered upon a verdict of a jury directed by the court after setting aside the answers of the jury to specific questions submitted to it, reversed upon the law, with costs, the answers of the jury to the questions submitted to it reinstated and a general verdict thereupon directed for the plaintiff for the relief demanded in the complaint, with costs, and judgment directed accordingly. In our opinion, the burden was upon the defendant to sustain its defense that the defendant on the dates in question had no surplus. (Richards v. Wiener Co., 207 N. Y. 59, 65.) We further think that the defendant failed to sustain this burden, and that it was error, therefore, for the court to set aside the answers made by the jury to the questions submitted to it and to direct a verdict for the defendant. In any event, we think that the evidence presented a question of fact for the determination by the jury, and that its verdict should not have been disturbed. Young, Carswell, Tompkins and Johnston, JJ., concur; Lazansky, P. J., concurs for reversal but dissents from the direction of judgment for plaintiff and votes for a new trial.  