Power v. Falk
| Decision Date | 14 December 1961 |
| Citation | 15 A.D.2d 216,222 N.Y.S.2d 261 |
| Parties | Lorenzo Joseph POWER et al., Plaintiffs-Appellants, v. Jacob FALK et al., Defendants-Respondents, and Joseph A. BYRNE et al., Defendant and Cross-Complainant-Respondent-Appellant. |
| Court | New York Supreme Court — Appellate Division |
John M. Cunneen, New York City, for appellants.
Joseph A. Byrne, Jr., New York City, for appellant Byrne.
Albert J. Rosenthal, New York City, of counsel (Demov & Morris, New York City, attorneys), for defendants-respondents.
Before McNALLY, J. P., and STEVENS, EAGER, STEUER, and BASTOW, JJ.
Plaintiffs appeal from a judgment dismissing the complaint after trial and from an order denying an application to reopen the case for further proof. In view of the disposition made upon the first appeal, the second appeal is dismissed as academic.
Plaintiffs sue for the delivery of certain stock certificates, an accounting of the rents in a certain building, and other equitable relief. It appears that in 1937 the plaintiffs owned the building in question, 147 West 40th Street, having acquired it by descent from Michael Deane, their father. The property was encumbered by a first mortgage in the sum of $76,000 held by the Dry Dock Savings Bank and a second mortgage in the sum of $15,675 held by defendant Jacob Falk. Plaintiffs had frequently gone to Falk for loans on this building, and the second mortgage was a consolidation of prior mortgages securing those loans and the discounts charged by Falk. At that time the property was in serious financial difficulty. The first mortgagee was in process of foreclosing its mortgage and a receiver appointed on its application was in possession and collecting the rents. The main tenants were in default on their rent. At this juncture plaintiffs consulted Falk to enlist him in an effort to have the foreclosure proceedings withdrawn, and for a period of two years he negotiated unsuccessfully with the bank.
In 1939 some sort of tentative plan with which the bank was to be approached was worked out. It was decided to form a corporation to which the plaintiffs were to convey the property in return for the stock of the corporation. Falk was to advance additional money which was to be applied on the first mortgage, and his second mortgage was to be increased in the amount of this advance. To protect his investment he was to have an equal voice with the owners in the management of the property. Accordingly, a deed was executed by the plaintiffs to Morina Equities, Inc., a corporation not yet formed, and delivered in escrow to Falk's attorney, who was to form the corporation. It was later formed.
At this point the contentions of the parties differ very sharply. Falk contends that he undertook the enterprise in the belief that the foreclosure action could be settled for some figure between $2,000 and $5,000. Offers in this range were refused by the Dry Dock Savings Bank and it insisted on payment of the full sum of default, some $13,000, plus all sums in the hands of the receiver. Falk reported to the plaintiffs that he was unwilling to make any such investment and the matter then stood at an impasse for a period. Upon being further consulted, he pointed out that the plaintiffs had practically no equity in the building at current real estate values and, while they stood to lose the building, they were not losing anything that had any value to them. As for himself, he had the amount of the second mortgage to protect, and he was willing to protect it, but only if he got the building. He was unwilling to put out any further moneys (at least not as much as would be required) on any other basis, and would pay the plaintiffs nothing. He was agreeable to releasing them on the notes and bonds which his mortgage secured. He claims that this proposition was accepted by the plaintiffs and ...
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Kahn, In re
...not given at the District Court trial, added nothing either relevant nor previously unknown. We, too, accept Power v. Falk, 15 A.D.2d 216, 218, 222 N.Y.S.2d 261, 263 as authority for the sound rule that the case is rare where a reviewing court should cast aside a hearing officer's judgment ......
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De Mayo v. Yates Realty Corp.
...York Practice § 473, pp. 183--184; § 171, pp. 597--599), we have not, in appropriation cases, ordinarily done so; * * *'. Power v. Falk, 15 A.D.2d 216, 222 N.Y.S.2d 261, cited in Conklin involved an action seeking delivery of stock certificates and an accounting for rents of a building with......
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Conklin v. State
...in the trial court and an adequate review in the appellate courts.' (Driskell v. Alfano, 12 A.D.2d 973, 211 N.Y.S.2d 668; Power v. Falk, 15 A.D.2d 216, 222 N.Y.S.2d 261; 7 Carmody-Wait, New York Practice, §§ 7-9, pp. 10-14.) Although this court has the undoubted power to make new and approp......
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W. v. D.
...N.Y.Civ.Prac., 5522.04), it would be better practice, in the instant case, to grant a new trial (Power v. Falk, 15 A.D.2d 216, 218, 222 N.Y.S.2d 261, 263; Victor Catering Co. v. Nasca, 8 A.D.2d 5, 9, 185 N.Y.S.2d 466, 470; 7 Weinstein-Korn-Miller, supra, ...