Summary
In McNaughton v International Diesel Elec. Co. (286 App. Div. 102 1), the defendant had wrongfully attached a $35,000 certified check which had been deposited by plaintiff.
Summary of this case from Richman v. RichmanOpinion
October 10, 1955.
Present — Nolan, P.J., Wenzel, Schmidt, Beldock and Ughetta, JJ.
Action to recover damages for the wrongful attachment of a $35,000 certified check, which had been indorsed to and deposited by plaintiff. In a prior action, brought by defendant International Diesel Electric Co., Inc., against one Solomon Marchak, a payee of the check, said attachment was made at the instance of International. Subsequently, International merged with the other defendant in this action. In a third-party proceeding brought by plaintiff after the attachment, it was determined that he was the rightful owner of the check. Upon appeal, the Appellate Division of the Supreme Court, First Judicial Department, affirmed ( 278 App. Div. 812) and awarded costs, which were taxed in the sum of $95.53. An appeal to the Court of Appeals was dismissed without costs ( 303 N.Y. 910). In this action plaintiff appeals from the judgment insofar as it denies recovery of costs and disbursements awarded by the Appellate Division on the appeal in the prior action, interest on $35,000, the amount of the attached check, during the period of the levy, from July 20, 1949 to June 10, 1950, and interest on the total amount of the foregoing items to the date of the judgment. Judgment modified on the law so as to award to plaintiff, in addition to the sums provided therein, interest at the rate of six per centum (6%) per annum on $35,000 from July 20, 1949, to June 10, 1950, together with interest at said rate, upon the amount so determined, from June 10, 1950, to the date of the judgment. As so modified, judgment unanimously affirmed, with costs to appellant. ( Wilson v. City of Troy, 135 N.Y. 96; Flamm v. Noble, 296 N.Y. 262.) The findings of fact are affirmed.