Millfield Realty Co. v. Joseph P. Day, Inc.

• Decision Date: 24 November 1931
• Citation: 178 N.E. 775,257 N.Y. 515
• Parties: MILLFIELD REALTY CO. v. JOSEPH P. DAY, Inc., et al.
• Court: New York Court of Appeals Court of Appeals

257 N.Y. 515

178 N.E. 775

MILLFIELD REALTY CO.

v.JOSEPH P. DAY, Inc., et al.

Court of Appeals of New York.

Nov. 24, 1931.

Action by the Millfield Realty Company against Joseph P. Day, Incorporated, impleaded with Eugene P. Catena and wife. Judgment of the Appellate Division for plaintiff for full amount involved in controversy, expenses, and damages incident to auction sale was modified by Court of Appeals (256 N. Y. 435, 176 N. E. 830) by striking out expenses of sale and damages. On motion of defendant first named for restitution.

Motion granted as to defendants Catena, and denied as to their attorney.

William Harvey Smith, of New York City, for the motion.

Sol L. Youngentob, of New York City, opposed.

CARDOZO, C. J.

The plaintiff, the successful bidder at an auction sale, brought this action against Joseph P. Day, Inc., the auctioneer, and Eugene Catena and wife, the owners, to recover the down payment and expenses.

The trial judge dismissed the complaint, and incorporated in his judgment a direction that the auctioneer be permitted to retain its commissions ($881.25) and expenses ($134), and that it turn over to the sellers $2,534.75, the amount of the deposit after making these deductions.

The plaintiff appealed from that judgment to the Appellate Division. The auctioneer did not appeal, but surrendered the deposit, deducting only the itmes for which its own lien had been declared. On the appeal by the plaintiff the Appellate Division reversed the judgment altogether, and gave judgment against the Day corporation and the owners for the full amount of the deposit ($3,525), and the expenses and damages incidental to the sale.

The auctioneer, but not the owners, appealed to this court. On that appeal the judgment of the Appellate Division was modified by striking out $441.50, the expenses of the sale and damages, and as modified affirmed. 256 N. Y. 435, 176 N. E. 830.

The motion before us is by the auctioneer for an order of restitution, directed to the codefendants Catena and calling for the refund of the part of the deposit received to their use. The motion prays for like relief against the attorney for Catena, it appearing that the owners paid to the attorney the entire amount received by them, less $500 only, in payment for professional services in this and other litigations.

So far as the defendants Catena are concerned, a case for restitution is made out. Civil Practice Act, § 587. The action in its inception was one to...