Opinion
January 14, 1988
Appeal from the Supreme Court, New York County (Andrew R. Tyler, J.).
After a nonjury trial, Trial Term found that defendant Harvey A. Leve had converted $115,000 from his employer, Quasha; that his brother, plaintiff Judson L. Leve, had received the wrongfully taken funds; and, that under the circumstances, i.e., that Judson knew the funds that he was receiving, at the time he received them, to be the funds belonging to Quasha, he is chargeable with culpable knowledge of his brother's wrongful acts. These findings are amply supported by the record and establish Judson A. Leve's liability for conversion in that he participated, aided and assisted in his brother's misappropriation of Quasha's funds. A wrongful intent is not an essential element of the conversion. (See, Passaic Falls Throwing Co. v Villeneuve-Pohl Corp., 169 App. Div. 727, 729; Ahles v Aztec Enters., 120 A.D.2d 903, 904.)
Thus, even though Quasha's second cross claim for conversion was asserted against Harvey A. Leve alone, when later faced with conflicting proposed judgments, with supporting affidavits, one settled by Quasha imposing liability jointly and severally on the Leves and the other, settled by the Leves, imposing liability on Harvey A. Leve alone, the court should have conformed the pleadings to the trial evidence and entered judgment against the Leves, jointly and severally. (See, CPLR 3025 [c]; Dampskibsselskabet Torm A/S v Thomas Paper Co., 26 A.D.2d 347, 352; see also, Greene v Hellman, 51 N.Y.2d 197, 200, n 1.)
Likewise, where the court found that recovery of the converted funds alone would not be adequate to fully compensate Quasha, it should not have permitted the interpleader funds, which consisted of the $115,000 originally converted plus accumulated interest thereon, to be used to offset and discharge the additional award of legal expenses.
We have examined the other points raised on these cross appeals and find them unpersuasive.
Concur — Kupferman, J.P., Sullivan, Ross and Asch, JJ.