Terranova v. Emil

• Decision Date: 02 February 1967
• Citation: Terranova v. Emil, 276 N.Y.S.2d 944, 27 A.D.2d 712 (N.Y. App. Div. 1967)
• Parties: Vincent TERRANOVA, Plaintiff-Appellant, v. Allan D. EMIL and Joseph Slifka, Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 944

276 N.Y.S.2d 944

27 A.D.2d 712

Vincent TERRANOVA, Plaintiff-Appellant, v.Allan D. EMIL and Joseph Slifka, Defendants-Respondents.

Supreme Court, Appellate Division, First Department.

Feb. 2, 1967.

H. Salvan, New York City, for plaintiff-appellant.

R. Conrad, New York City, for defendants-respondents.

Before STEUER, J.P., and CAPOZZOLI, TILZER and McNALLY, JJ.

PER CURIAM.

Order entered May 25, 1966, granting summary judgment to defendants-respondents, affirmed, with $50 costs and disbursements to respondents.The purchase money mortgage here involved arose out of the sale of the property by the defendants to the plaintiff.Title closed February 25, 1964, the date of the mortgage.Concurrently there was delivered to plaintiff a written direction signed by defendants for the making of all payments on account of the mortgage to Allan D. Emil, attorney for the mortgagees, including defendant Riker.Plaintiff does not rely on the revocation of said direction or any other oral or written direction emanating from defendants-respondents.Plaintiff's reliance on the alleged partnership among the said mortgagees antedating the mortgage was in derogation of the said written direction.Plaintiff made the alleged payments to defendant Riker at his own peril.The respondents did not directly or indirectly induce the alleged payments to Riker.

All concur except STEUER, J., who dissents in the following memorandum:

STEUER, Justice (dissenting).

This action is one of several of recent vintage arising out of the widespread activities of a real estate speculator named I. Jerome Riker.A number of these suits, including this one, have, as their ultimate question, which of two innocent parties--Riker's innocent associates or the person with whom they dealt--is to suffer from his various misdeeds.In this casethe plaintiff is in the latter category and the defendants are the Riker associates.

The two defendants-respondents with Riker each owned an undivided one-third interest in a building on the corner of Walker and Canal Streets in Manhattan.They sold this building to the plaintiff.Riker conducted all the negotiations and plaintiff never met or had any contact with the other two.As part of the consideration plaintiff gave a purchase money mortgage for $42,075.Riker told the plaintiff that the sellers would be agreeable to discounting this mortgage for $37,500 in cash.A short time later plaintiff raised this sum and paid it to Riker who gave him a...