Opinion
June 20, 1947.
Appeal from Supreme Court, New York County, PECORA, J.
Harold Weill of counsel ( Edward J. Leon, Vitalis L. Chalif and Hector G. Dowd with him on the brief; Leon, Weill Mahony, attorneys), for claimant Louis S. Ottimer, intervening defendant-appellant.
Ralph M. Carson of counsel ( Francis W. Phillips with him on the brief; Davis Polk Wardwell Sunderland Kiendl, attorneys), for plaintiffs-respondents.
This appeal by Louis S. Ottimer, individually and on behalf of a so-called Independent Committee, is one of twelve appeals taken to this court by various parties from a final judgment in this voluntary accounting proceeding of plaintiffs as the International Committee of Bankers on Mexico. The other eleven appeals were combined in a single printed record, but this court grantd Ottimer leave to appeal on the stenographic minutes.
Ottimer made claim, as allowable to himself personally and his so-called committee, to the sum of $139,042.96 or 2% of the balance of approximately $7,000,000 in the hands of the plaintiff committee. In rejecting this claim the Referees said: "In the present case, the funds, had already been collected by the Committee without any assistance from Ottimer, whose primary interests were either on his own behalf or on behalf of the Ottimer Committee and were at all times limited to the bonds of the direct secured Government debt, representing only three items of twenty-eight listed in the Deposit Agreement between the Committee and the depositing bondholders."
The Referees also ruled: "It is evident from the examination of claimant's testimony that his so-called `committee' never functioned. If not stillborn, it lacked all the essentials of a normal life. Created in a most informal manner, it never possessed the usual attributes of a bondholders' committee, such as authority from bondholders, the deposit of securities, provision for expenses, an agreement constituting the committee, etc. The only letter which claimant sent out to solicit bondholders was promptly recalled * * *. The office of the Ottimer Committee was in Mr. Blumenthal's office [the office of Ottimer's counsel]. Indeed, claimant testified, upon cross-examination, that his counsel, rather than claimant himself, performed substantially all of the items contained in the proof of claim."
Special Term confirmed the decision of the Referees and also denied claims for compensation filed by other associates of the so-called Ottimer committee.
The state of facts out of which the claim arose is sufficiently set forth in the opinions on the other appeal decided herewith ( 272 App. Div. 882). The evidence fully justifies the decision of the Referees and Special Term. Ottimer's counsel and not the claimant Ottimer performed the services alleged in the proof of claim. We think there is no merit whatever to this claim and that the decision of the Referees and Special Term rejecting it is in accordance with the evidence and the applicable law.
Paragraph "P" of the final judgment of Special Term appealed from herein by Ottimer should be affirmed, with costs.
GLENNON, COHN and PECK, JJ., concur.
Judgment, so far as appealed from, unanimously affirmed, with costs to the plaintiffs-respondents.