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Matter of Wynyard v. Beiny

Appellate Division of the Supreme Court of New York, First Department
Apr 6, 1995
214 A.D.2d 344 (N.Y. App. Div. 1995)

Summary

affirming trial court's denial of specific performance as impossible where the third-party plaintiff sought to have pledge stock to it could not because the third party did not own the stock

Summary of this case from Strategic Value Master Fund v. Cargill Financial Ser

Opinion

April 6, 1995

Appeal from the Surrogate's Court, New York County (Eve Preminger, S.).


Contrary to petitioner's contention, the record shows that the trustees of the Beiny Trust refused to consent to the pledge of the stock by respondent Beiny, who was merely the discretionary beneficiary and not owner of the stock, and thus did not personally have the power to pledge the trust's assets (EPTL 7-2.1 [a]; see, Cohn v United States Trust Co., 127 A.D.2d 523). Specific performance was therefore properly denied as impossible (see, Newman v Resnick, 38 Misc.2d 94), rendering moot the question whether attorneys had a valid retaining lien on the stock. Since civil contempt penalties should be "remedial [in] nature and effect", not punitive (McCain v Dinkins, 84 N.Y.2d 216, 229), the Surrogate also properly deferred punishment for Beiny's acts of contempt until conclusion of the accounting proceeding, when the appropriate computations as to damages can be more readily made.

Concur — Sullivan, J.P., Wallach, Nardelli, Williams and Mazzarelli, JJ.


Summaries of

Matter of Wynyard v. Beiny

Appellate Division of the Supreme Court of New York, First Department
Apr 6, 1995
214 A.D.2d 344 (N.Y. App. Div. 1995)

affirming trial court's denial of specific performance as impossible where the third-party plaintiff sought to have pledge stock to it could not because the third party did not own the stock

Summary of this case from Strategic Value Master Fund v. Cargill Financial Ser
Case details for

Matter of Wynyard v. Beiny

Case Details

Full title:In the Matter of MARTIN WYNYARD, Appellant, v. ROTRAUT L.U. BEINY et al.…

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

Date published: Apr 6, 1995

Citations

214 A.D.2d 344 (N.Y. App. Div. 1995)
625 N.Y.S.2d 27

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