Summary
surcharging in equitable accounting faithless trustee for salary paid him
Summary of this case from Government Guarantee Fund of Republic of Finland v. Hyatt Corp.Opinion
Argued May 28, 1970
Decided July 1, 1970
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, HAROLD J. CRAWFORD, J.
Frank S. Polestino and Robert J. Glasser for appellant-respondent.
Benjamin Cooper and Joel L. Cohen for respondents-appellants.
MEMORANDUM. Since the allegations of the complaint do not assert a fraud "aimed at the public generally" ( Walker v. Sheldon, 10 N.Y.2d 401, 405; see also, James v. Powell, 19 N.Y.2d 249, 260), plaintiffs are not entitled to exemplary damages. The record contains all of the proof required to make a final disposition of this case. Based on the plaintiffs' uncontradicted evidence, the net amount of compensatory damages is $74,942.67. In addition, the faithless trustee should be surcharged in the amount of $9,316, the salary paid him in the course of his stewardship. Plaintiffs are also entitled to interest from January 1, 1955, as directed by the trial court.
Accordingly, the order should be modified by striking the award of exemplary damages and reducing the net amount of compensatory damages to $84,258.67.
Chief Judge FULD and Judges BURKE, SCILEPPI, BERGAN and GIBSON concur;
Judge BREITEL dissents and votes to affirm in the following memorandum, in which Judge JASEN concurs:
Insufficient basis was shown to establish error and for that reason I would affirm generally. I would note agreement, however, with the majority that punitive damages were not allowable. But in the confused state of this record and the briefs it is not possible for me to determine whether the several items of damages do not include an offset for the punitive damages.
Order modified in accordance with the memorandum herein, and, as so modified, affirmed, without costs.