National Sur. Corp. v. Silver

• Decision Date: 30 December 1965
• Citation: 266 N.Y.S.2d 983,17 N.Y.2d 477
• Parties: , 214 N.E.2d 162 NATIONAL SURETY CORPORATION, Respondent, v. Rodger M. SILVER, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 983

266 N.Y.S.2d 983

17 N.Y.2d 477, 214 N.E.2d 162

NATIONAL SURETY CORPORATION, Respondent, v. Rodger M. SILVER, Appellant.

Court of Appeals of New York.

Dec. 30, 1965.

Appeal from Supreme Court, Appellate Division, First Department, 23 A.D.2d 398, 261 N.Y.S.2d 511.

Plaintiff surety brought action for an accounting and personal judgment against defendant. The complaint alleged that defendant had been employed by corporation as assistant credit manager and, while so employed, had wrongfully taken funds belonging to the corporation, and that plaintiff had issued a bond indemnifying the corporation against loss of money by reason of dishonesty on part of its employees, including the defendant, and that plaintiff surety, on demand of corporation, had made payment to the corporation under the bond, and that the plaintiff surety had become subrogated to the corporation's rights and remedies against the defendant.

A consent judgment was entered requiring defendant to account for moneys received and directing defendant to pay plaintiff surety the sum of $20,000 with interest, costs, and disbursements.

The Supreme Court, Special Term, New York County, Thomas C. Chimera, J., entered an order denying a motion by the plaintiff surety to punish the defendant for contempt of court for failure to pay the consent judgment, and the plaintiff surety appealed.

The Appellate Division, Breitel, J., entered an order which modified, on the law and the facts and in the exercise of discretion, the order of the Special Term by directing defendant to make installment payments on account of the judgment debt, and ordering that, in event of willful default in any payment, not cured within specified time after notice and demand, plaintiff surety might move at Special Term, on notice, for an order of commitment, and, in event of granting of motion, defendant might be apprehended, committed to jail, and held in custody until payment of amount in default and disbursements connected with the commitment, or until defendant was discharged according to law, and directing defendant to deliver to plaintiff's attorney copies of federal and state income tax returns filed by him and, if requested to do so by plaintiff surety, to reply to questionnaire concerning matter relevant to his assets, gross income, and dependents. Eager, J., dissented on ground that judgment amounted merely to a direction for recovery of converted funds and that a money judgment in conversion is not...