From Casetext: Smarter Legal Research

Gelsomino v. F.H. McGraw Co., Inc.

Appellate Division of the Supreme Court of New York, First Department
Nov 3, 1966
26 A.D.2d 915 (N.Y. App. Div. 1966)

Opinion

November 3, 1966


Order granting defendants' motion for summary judgment and denying plaintiff's motion for summary judgment, and the judgment entered pursuant to said order, unanimously reversed, on the law, defendants' motion denied and plaintiff's motion granted to the extent hereinafter set forth, with $50 costs and disbursements to plaintiff-appellant. The settlement was bottomed on Maiellano's claim that the McGraw company had made contracts with Venezuelan governmental agencies. The agreement with plaintiff clearly embraced the proceeds of such a settlement. Maiellano cannot be heard to say that McGraw should pay him because contracts were made and at the same time that he need not pay plaintiff because contracts were not made. Moreover, the assignment, dated in June, 1962, referred not only to contracts "to be concluded" but also to "contracts already made". The inclusion of the latter words shows that the parties regarded McGraw's agreements with Centro of March 3, 1961, as within the meaning of the term "contracts" as used in the assignment. We understand and hold the amount finally collected by Maiellano to be the aggregate sum payable by McGraw under the settlement agreement ($25,000), after deduction of the provision therein for attorneys' fees and disbursements ($8,920). Accordingly, plaintiff is entitled to 40% of $16,080, with interest. Settle order on notice.

Concur — Botein, P.J., Breitel, Stevens and Capozzoli, JJ.


Summaries of

Gelsomino v. F.H. McGraw Co., Inc.

Appellate Division of the Supreme Court of New York, First Department
Nov 3, 1966
26 A.D.2d 915 (N.Y. App. Div. 1966)
Case details for

Gelsomino v. F.H. McGraw Co., Inc.

Case Details

Full title:GASPARE GELSOMINO, Appellant, v. F.H. McGRAW CO., INC., et al., Respondents

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Nov 3, 1966

Citations

26 A.D.2d 915 (N.Y. App. Div. 1966)