Opinion
December 6, 1960
Judgment unanimously modified on the law and on the facts to delete therefrom the first decretal paragraph thereof, and in lieu thereof to order, adjudge and decree that the plaintiff B.W. Dyer Co. recover of defendant Monitz, Wallack Colodney a sum of money equal to the difference between the amount of $133,109.72 received by it on the sale of the sugar and the amount of its charges ($44,390.71, freight, etc. plus $82,000) against the same other than the April 13, 1956 item of $23,000, reduced to $6,500 and interest thereon. Such difference is computed and found by the court to be the sum of $1,221.90; and plaintiff B.W. Dyer Co. shall have recovery against defendant Monitz, Wallack Colodney for such sum of $1,221.90, with interest thereon from June 1, 1957, with taxable costs in the court below, but without costs of the appeal. The judgment is otherwise unanimously affirmed, without costs. The defendant Monitz, Wallack Colodney was not a pledgee in good faith and for value with respect to the sum of $23,000 represented by said April 13, 1956 item. The purported charge of such item against the security of the documents of title for the sugar was no more than a mere bookkeeping entry on the transfer of such funds to the futures trading account of Skrod, and, thereupon, upwards of $6,500 of such item was applied to liquidate antecedent indebtedness of Skrod. Monitz, therefore, did not acquire a valid claim, as against the proceeds of sale of the sugar, for the balance of $6,500 and interest which remained unpaid on said item. (Cf. Adams v. Bowerman, 109 N.Y. 23.) In fact, the said defendant did not upon the trial of this action seriously take the position that it was entitled to claim credit on account of such item. Settle order on notice.
Concur — Breitel, J.P., Rabin, Valente, McNally and Eager, JJ.