Man Radio & Electricals, Limited v. Von Cseh
| Decision Date | 24 April 1958 |
| Citation | 175 N.Y.S.2d 458,12 Misc.2d 435 |
| Parties | MAN RADIO & ELECTRICALS, LTD., Plaintiff, v. Louis VON CSEH, Defendant. |
| Court | New York Supreme Court |
Keesing & Keesing, New York City (Bruce M. Steinburg, New York City, of counsel), for plaintiff.
Milton Pollack, New York City (Samuel N. Greenspoon, New York City, of counsel), for defendant.
This action is brought to recover $210,338.65, the amount of moneys claimed to have been stolen by the defendant. The complaint contains 24 causes of action, all identical, except for the date of the theft and the amount stolen. A statement of a single cause of action will, therefore, suffice for disposition of the present motion to dismiss each cause of action on the ground that it did not accrue within the time limited for the commencement of an action thereon, and on the further ground that it does not state facts sufficient to constitute a cause of action.
It is alleged that on October 15, 1953 an indictment was filed against the defendant in the Court of General Sessions in the County of New York, a copy of which is made part of the complaint. On June 7, 1957 the defendant was convicted of the crime of grand larceny in the first degree as set forth in a designated count of the indictment and on November 18, 1957 for the conviction of this felony he was sentenced to state prison for a term of from two to four years as shown in the certificate of the clerk of the Court of General Sessions, likewise made part of the complaint. By reason of the foregoing the plaintiff has been damaged by the defendant's felonious acts and has become entitled to recover the stated amount pursuant to section 512-b of the Penal Law. The designated count charges that the defendant on a given date with the necessary intent stole the plaintiff's property, to wit, currency of the United States in a stated amount. Each of the 24 larcenies of which the defendant was so convicted is charged to have been perpetrated between tween May 3, 1948 and December 6, 1949, and none is alleged to have occurred later than December 6, 1949.
Section 512-b of the Penal Law reads as follows:
'A person injured by the commission of a felony, for which the offender is sentenced to imprisonment in a state prison, is deemed the creditor of the offender, and of his estate after his death, within the provisions of the statutes relating thereto.
'The damages sustained by the person injured by the felonious act, may be ascertained in an action brought for that purpose by him against the trustees of the estate of the offender, appointed under the provisions of the statutes, or the executor or administrator of the offender's estate.'
On the branch of the motion based on the statute of limitations, the narrow question is whether the cause of action arose when the defendant stole the money or whether it came into being only when he was convicted or sentenced for the larceny. If the former is the case, the action is not timely, for it was commenced on March 6, 1958, more than eight years after the latest of the thefts of which the defendant stands convicted. If it arose on the defendant's conviction or sentence, the action is brought well within the time prescribed for its commencement.
The plaintiff argues that its cause of action is one to recover on a liability created by statute, except a penalty or forfeiture, subject to the six year period of limitation pursuant to section 48(2) of the Civil Practice Act. Neither party has cited direct authority on the question nor has the court found any.
A cause of action for breach of contract or conversion accrues when the breach or the conversion occurs (Guild v. Hopkins, 271 App.Div. 234, 244, 63 N.Y.S.2d 522, 530, affirmed 297 N.Y. 477, 74 N.E.2d 183). In Gordon v. Hostetter, 37 N.Y. 99, the defendant sued for the conversion of moneys he had stolen from the plaintiffs, his...
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People v. Goldstein
...459 (Sup.Ct., Richmond Co., 1964), aff'd 25 A.D.2d 953, 270 N.Y.S.2d 398 (2nd Dept., 1966); Man Radio & Electricals, Ltd. v. Von Cseh, 12 Misc.2d 435, 175 N.Y.S.2d 458 (Sup.Ct., N.Y. Co., 1958), appeal conditionally dismissed 7 A.D.2d 983, 187 N.Y.S.2d 322 (1st Dept., 1959), aff'd 9 A.D.2d ......
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Kamienska v. Westchester County
...of the action for conversion is not tolled or extended by the pendency of a criminal prosecution (cf. Man Radio & Electricals, Ltd. v. Von Cseh, 12 Misc.2d 435, 175 N.Y.S.2d 458). In the case at bar, plaintiffs' monies and other personal property were taken from them by deputy sheriffs on D......
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Man Radio & Electricals, Ltd. v. Von Cseh
...R. K. Keesing, New York City, for plaintiff-appellant. M. Pollack, New York City, for defendant-respondent. Judgment and order, 12 Misc.2d 435, 175 N.Y.S.2d 458, unanimously affirmed with costs to the respondent. No ...
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Man Radio & Electricals, Ltd. v. Von Cseh
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