Scheller v. Bowery Sav. Bank

• Decision Date: 27 July 1995
• Parties: Damion SCHELLER, Plaintiff-Respondent, v. The BOWERY SAVINGS BANK, Defendant, Howard Adelglass, et al., Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 62

630 N.Y.S.2d 62

217 A.D.2d 506

Damion SCHELLER, Plaintiff-Respondent, v. The BOWERY SAVINGS BANK, Defendant Howard Adelglass, et al., Defendants-Appellants.

Supreme Court, Appellate Division First Department.

July 27, 1995.

P. Shemtob, for plaintiff-respondent.

D.S. Michaels, for defendants-appellants.

Before MURPHY, P.J., and SULLIVAN, RUBIN, KUPFERMAN and ROSS, JJ.

MEMORANDUM DECISION.

Order and judgment (one paper), Supreme Court, New York County (Diane Lebedeff, J.), entered February 17, 1994, which granted partial summary judgment to plaintiff against defendant Susan Lichtenstein on the fourth cause of action in the total amount of $8,881.17, and which adjudged that plaintiff have judgment against defendants Howard Adelglass and Susan Lichtenstein in connection with a stipulation of settlement of $24,418.76, but which directed that pre-judgment interest be awarded from the commencement of the action, unanimously modified, on the law and on the facts and in the exercise of discretion, to delete the award of pre-judgment interest for the award of $24,418.76, and, except as thus modified, affirmed, without costs or disbursements.

Judgment, Supreme Court, New York County (Ira Gammerman, J.) entered February 17, 1994, which awarded plaintiff $146,444 plus costs, disbursements and interest totalling $261,609, unanimously affirmed, without costs or disbursements.

This action originally sounding in various contract and tort theories, but converted by the court, without objection of the parties, into an action for breach of contract, was commenced by a son, a former child actor, and sought recovery of his earnings from his mother, who held his earnings informally in trust. The theory pursued by plaintiff at trial, submitted to the jury and upon which the verdict was rendered was that plaintiff reluctantly continued his employment during his minority years in exchange for his mother's promise to hold onto his earnings and relinquish them when he reached his majority so that they could be used to pay his college tuition and other expenses. When the time came, the funds had been depleted.

Although the rule in New York is that a parent or guardian has a legal right to possession of funds belonging to an infant charge (Schonberger v. Culbertson, 231 A.D. 257, 258-259, 247 N.Y.S. 180; see Arts and Cultural Affairs Law § 35.03[3][b] ), the parties may, of course, vary the rule by private arrangements. On appeal, the mother urges that the statute of frauds (GOL § 5-701[a][1] would render unenforceable an oral contract such as this which purportedly could not be performed within one year. However, since this defense was not raised either in the answer or at any appropriate time during the...