Family Media, Inc. v. Printronic Corp. of America, Inc.

• Decision Date: 03 May 1988
• Citation: 140 A.D.2d 151,527 N.Y.S.2d 786
• Parties: FAMILY MEDIA, INC., Plaintiff-Respondent, v. PRINTRONIC CORPORATION OF AMERICA, INC., et al., Defendants-Appellants and Third-Party Plaintiffs, Towers Collection Service, Inc., Third-Party Defendant.
• Court: New York Supreme Court — Appellate Division

Page 786

527 N.Y.S.2d 786

140 A.D.2d 151

FAMILY MEDIA, INC., Plaintiff-Respondent, v.PRINTRONIC CORPORATION OF AMERICA, INC., et al Defendants-Appellants and Third-Party PlaintiffsTowers Collection Service, Inc.Third-Party Defendant.

Supreme Court, Appellate Division First Department.

May 3, 1988.

A.R. Hollyer, New York City, for plaintiff-respondent.

A.N. Ross, New York City, for defendants-appellants and third-partyplaintiffs.

Before MURPHY, P.J., and SANDLER, SULLIVAN, ASCH and MILONAS, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (David H. Edwards, Jr., J.), entered on or about March 30, 1987, granting partial summary judgment to plaintiff on the issue of liability on the first, third, fourth, fifth and sixth causes of action, unanimously reversed, on the law, with costs and disbursements, and the motion denied.

This lawsuit, encompassing claims of malicious prosecution, abuse of process, money had and received, conversion and unjust enrichment is an outgrowth of an earlier action brought by Printronic Corporation, a defendant herein, against Country Music Magazine to recover $24,343.39 for work, labor and services.Also joined as a defendant in that action was Family Media, the plaintiff herein, against which judgment was sought on the theory that Family Media had agreed to pay Country Music's debt to Printronic.Ultimately that action was dismissed on motion against Family Media but not before there had been a settlement, eventually alleged to have been breached by Country Music, and the subsequent entry of a default judgment against both Country Music and Family Media.The entry of the default judgments led to the service of a restraining notice on Manufacturers Hanover Trust, with which Family Media maintained a checking account.Ultimately, Printronic agreed to lift the restraint and vacate the default on condition that Family Media pay the sum of $18,000, of which $13,000 was to be placed in an escrow account.An additional $5,000 was paid.While Family Media alleges that the latter was also to be held in escrow, Printronic alleges that it was a payment on account of Count Music's debt.Drawn on the account of the attorney who represented both Country Music and Family Media, the check includes the legend "Payment re: Printronic VCMMI and Family Media, Inc."After the underlying action was dismissed against Family Media, Printronic returned the $13,000 held in escrow, but kept the $5,000, claiming that this amount had been paid...