(dissenting). Plaintiff and defendants’ intestate, each represented by counsel, and being the owners of all the outstanding stock of a corporation, agreed by a formal written contract: (1) that if either should wish to sell his or her stock while both were alive, the price should be the “ actual value ” as determined by arbitration; but (2) that when either should die, the stockholdings of the deceased should be sold to, and purchased by, the other stockholder at the “ booh value of said stock ” to “ be determined by the most recent audit of the boohs of the Corporation provided such audit has been made not more than sixty days before the death of such ” stockholder. (Italics supplied.) Stockholder Ostroff, defendants’ intestate, died on September 21, 1953, about a month after “ the most recent audit ” and less than sixty days after the date as of which the audit spoke. In this lawsuit the disputes are: first, as to whether the “ book value ” to be paid to defendants (Miss Ostroff’s administrators) should be reduced by the estimated amount of the corporation’s accrued Federal and State income taxes; and, second, whether “ book value ” should include, for inventory, the amount of $12,001.15 shown on the audit, or the amount of $51,058, shown not on the books but by a physical-count inventory made after Miss Ostroff’s death.
*166In every New York case we have found, the bare phrase “ bool value ’ ’ has been taken and defined to mean what it is popularly supposed to mean, that is, the assets shown on the books less the liabilities shown on the books (People ex rel. Knickerbocker Fire Ins. Co. v. Coleman, 107 N. Y. 541, 543; Steinbugler v. Atwater & Co., 289 N. Y. 816; Cabble v. Cabble, 111 App. Div. 426, 430 Lane v. Barnard, 185 App. Div. 754, 758). Book value “ if reached by estimating all the assets as they appear upon tin corporate books, and deducting all the liabilities and other mat ters required to be deducted by law ” (Coleman opinion, supra pp. 543-544). As tersely put in White on New York Corpora tians (Vol. 7, § 7.26): “ Book value means the value of the stock as shown on the books of the corporation. * * * Bool value is determined by deducting liabilities from assets. ’ ’ WitI that settled, we turn to the two items here in dispute: that is taxes and inventory.
The latest audit contained no liability figure for income taxei which could not, of course, be computed accurately until th< year ended. However, the report of audit contained a note tho the figures were “ Subject to Federal and State Income Taxes ¿ year-end adjustments ”. While, by such an audit, those taxei were not, in the fullest sense, “ determined ”, nevertheless, thi note, apparently made as a routine accounting practice, showec that the auditor (and the corporation) considered that its ne worth was lessened by accrued income taxes. Of course, th final amount of those taxes, dependent on future months’ earn ings and losses, could not be fixed until the end of the yeai However, they could be estimated. We, therefore, consider i reasonable to say that the “ book value ” of this corporation according to the “ most recent audit ”, necessarily involved deduction for the estimated amount of taxes to become due o: business already done.
As to inventory, the audit stated the value thereof as “ Esti mated..........$12,001.15 ’ ’, a figure submitted to the account ant at the time of the audit, by Miss Ostroff, the president, whos estate is now insisting that the larger figure of $51,058 be use because a post-death inventory produced that latter figure. W think that, in the absence of fraud or mathematical error, th book figure was the one to use. . These parties, taking thei chances as to which should die first, chose to make book valut *167as shown on the latest audit, the measure of price. It is entirely beside the point that the use of such figures turned out to he unfair ” to one or the other. As our courts long ago noted, a sale at book value is always “ unfair ” in the sense that book value, as to a going concern, is always more or less than, never 3qual to, actual or market value (People ex rel. Knickerbocker Fire Ins. Co. v. Coleman, 107 N. Y. 541, 544, supra; Cabble v. Cabble, 111 App. Div. 426, 430, supra). This corporation took inventory at intervals but had no running or continuous inventory. When the auditor came around, Miss Ostroff gave him an istimate of inventory and he put it on the books. At the trial, plaintiff’s counsel conceded that the actual figure, after Miss Dstroff’s death, was much higher than the book figure, but such a joncession could not change the contract’s test of “ book value ” is determined by latest audit. If, despite such a contract, there las to be a new physical inventory, and, likewise, a new, true valuation of every other asset and liability, then the phrase “ book value ” has no meaning and the convenient arrangements carecully worked out by the parties and their counsel in the written agreement comes to naught.
I have found no case where the New York courts have failed to 3arry out such an agreement according to its precise terms (see Drucklieb v. Sam H. Harris, Inc., 209 N. Y. 211, and Surrogate Griffith’s opinion in Estate of Reben, 115 N. Y. S. 2d 228, 237). In Steinbugler v. Atwater & Co. (289 N. Y. 816, supra), when the “ book value ” was computed, it was found that stocks 'in other corporations) owned by defendant Atwater were on the Itwater books at cost, which was concededly much higher than actual value. Atwater’s accountant then attempted to write these values down, but the courts, including this court, refused to.per-nit it. So the cost figures stood although, like the inventory value here, they were “ concededly erroneous ” in the sense that hey did not represent actuality.
The judgment should be modified accordingly, without costs.
Conway, Ch. J., Dye, Van Vooehis and Bubke, JJ., concur with Iboessel, J.; Desmond, J., dissents in part in an opinion in which Iuld, J., concurs.
Judgment accordingly.