City Investing Co. v. Gerken

The opinion of the Appellate Division on appeal from the result of a previous trial (200 App. Div. 503) establishes as the law of this case that the plaintiff can maintain this suit.

I find as a fact that the so-called Ettlinger transaction was merely *764the repayment of a loan and not the purchase by the corporation of its own stock and, therefore, none of the defendants is liable therefor.

With respect to the dividend, I find as a fact that it was declared and paid out of capital. The defendant Gerken was not at the meeting at which the dividend was voted. If this circumstance stood alone it…