From Casetext: Smarter Legal Research

Forum Insurance v. Worcester County Institution for Savings

Appellate Division of the Supreme Court of New York, First Department
Sep 14, 1995
219 A.D.2d 492 (N.Y. App. Div. 1995)

Opinion

September 14, 1995

Appeal from the Supreme Court, New York County (Harold Tompkins, J.).


Forum Insurance Company ("Forum") commenced this action to recover monies it paid out upon its bond of individual limited partner notes payable to Trident Telecommunications Systems I, Limited Partnership ("Trident"), and pledged by Trident to WCIS as security for a loan. When, as here, the findings in a nonjury trial are based largely on uncontradicted documentary evidence, this Court is "equally empowered [as the trial court] to draw inferences and make findings of fact based upon the evidence in the record" ( Orbit Holding Corp. v Anthony Hotel Corp., 121 A.D.2d 311, 315). Upon our review of the documentary and other evidence, we find, contrary to the view of trial court, that Forum's obligations arose solely under the individual limited partner notes, and thus the fact that WCIS made an over-advance to the limited partnership did not serve to modify or terminate Forum's obligation to make good on the individual bonds. Indeed, as was conceded by one of Forum's witnesses on cross-examination, the advance of $116,000 extra to the Trident partnership did not affect the obligations of each of the individual investors and fell outside the scope of the individual notes. Thus, the over-advance did not impose on Forum any greater potential liability than it originally assumed. As Forum failed to meet its burden of proving an alteration or termination of its obligations as surety of the individual investors' notes, WCIS was entitled to judgment in its favor as a matter of law.

In light of the foregoing, we need not reach the remaining contentions of the parties.

Concur — Sullivan, J.P., Ellerin, Wallach, Williams and Mazzarelli, JJ.


Summaries of

Forum Insurance v. Worcester County Institution for Savings

Appellate Division of the Supreme Court of New York, First Department
Sep 14, 1995
219 A.D.2d 492 (N.Y. App. Div. 1995)
Case details for

Forum Insurance v. Worcester County Institution for Savings

Case Details

Full title:FORUM INSURANCE COMPANY, Respondent-Appellant, v. WORCESTER COUNTY…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Sep 14, 1995

Citations

219 A.D.2d 492 (N.Y. App. Div. 1995)
631 N.Y.S.2d 165

Citing Cases

FORUM INS. CO. v. WORCESTER COUNTY INST. FOR SAV

Decided March 28, 1996 Appeal from (1st Dept: 219 A.D.2d 492) MOTIONS FOR LEAVE TO APPEAL GRANTED OR…

Abrahami v. UPC Construction Co.

We are mindful that, upon appeal, the decision of the fact-finding court should not be disturbed unless it is…