Opinion
November 18, 1975
Motion for reargument granted to the extent only of withdrawing the prior memorandum decision of September 25, 1975 and substituting therefor the following, without costs: Judgment, Supreme Court, New York County, entered January 8, 1975, after trial to the court, without a jury, unanimously affirmed, with costs. Though the suit was brought against others as well under several causes for failure properly to renovate a building, only one cause was sustained, and properly so, against the individual defendant-appellant. That cause was for conversion of moneys paid over to a corporation of which defendant-appellant was an officer, and which, as was testified by plaintiff without refutation in the record, the defendant admitted to him was used to make payments in connection with another job being done by another corporation. Though the cause pleaded a violation of the Lien Law, that plea was surplusage because of the inference from the evidence that defendant had made admissions spelling out the additionally pleaded common-law tort of conversion. There was no showing of any novation, as claimed by defendant, permitting such use of the funds.
Concur — Markewich, J.P., Kupferman, Tilzer, Capozzoli and Nunez, JJ.