Opinion
March 19, 1962
In an action by a judgment creditor, against the judgment debtors and others, based upon an alleged conspiracy entered into among the defendants to deprive plaintiff of the lien of its judgment, the corporate defendant Alco Utilities Corp. and the defendants Hauptman, Sussman, Korn and Lazarus, individually and as copartners doing business as Island Factors Co., appeal from so much of a judgment of the Supreme Court, Nassau County, entered January 31, 1961 on the jury's verdict after trial, as is in favor of plaintiff and against said defendants for $7,160.36, the amount concededly still unpaid on plaintiff's judgment, plus interest and costs, totaling $8,226.32. Judgment, insofar as appealed from, reversed on the law, with costs, and complaint as to said defendants dismissed, without costs. The findings of fact implicit in the jury's verdict are affirmed. Said defendants, who were not the judgment debtors but were the transferees of their property, were charged with participating in the conspiracy. One of the transfers of the judgment debtors' assets occurred before the rendition of plaintiff's judgment and before plaintiff obtained any lien on such assets. While the complaint sought various forms of equitable relief, as against said defendants it sought money damages only. At the close of the evidence and without objection, the trial court struck out the claims for equitable relief and submitted the case to the jury solely as one for damages against said defendants. Under the circumstances presented, plaintiff failed to establish a cause of action for damages against the said defendants (cf. Braem v. Merchants' Nat. Bank, 127 N.Y. 508; Kaspin v. Thaw, 262 App. Div. 861, and cases cited therein). A prior determination of the Special Term sustaining the sufficiency of the complaint does not constitute the law of the case in this court ( Rager v. McCloskey, 305 N.Y. 75, 78; Walker v. Gerli, 257 App. Div. 249; Rubinstein v. Rubenstein, 272 App. Div. 1042). Kleinfeld, Acting P.J., Christ, Brennan, Rabin and Hopkins, JJ., concur.