Apfel v. Auditore

Appellate Division of the Supreme Court of New York

Apfel v. Auditore

223 A.D. 457, 228 N.Y.S. 489, 1928 N.Y. App. Div. LEXIS 6236

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 27, 1928

StatusPublished

Cited by9 cases

This text of 223 A.D. 457 (Apfel v. Auditore) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Apfel v. Auditore, 223 A.D. 457, 228 N.Y.S. 489, 1928 N.Y. App. Div. LEXIS 6236 (N.Y. Ct. App. 1928).

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Opinion

Proskauer, J.

The plaintiff has had judgment for the value of his legal services claimed to have been rendered to all the defendants. The finding of the trial court as to the rendition and value of the services is amply sustained by the evidence. The corporate defendants challenge the judgment, however, upon the ground that the services for the most part were not rendered to them and that such work as the plaintiff performed for them was purely perfunctory and of merely nominal value. The stock of the defendant cor[458]*458porations was almost entirely owned by two brothers, Frank Auditore and Joseph Auditore. The administratrix of Joseph Auditore, charging Frank Auditore with waste of corporate funds and other misconduct as an officer and director of these corporations, brought a representative stockholders’ action. The corporations were made nominal defendants. Frank Auditore retained. the plaintiff’s firm as attorneys for himself and the corporations. In defending the action, however, the plaintiff’s firm was acting really in behalf of Frank Auditore and not beneficially for the corporations. We regard it as inequitable that the corporations should be called upon to pay for the defense of this action brought for their benefit and resulting in a judgment in favor of the plaintiff as a representative of the corporate interests. The amount of the plaintiff’s recovery against the corporations should be limited to the value of the labor of entering a nominal appearance for the corporations and formally appearing for them.

The judgment appealed from should be reversed and a new trial granted, with costs to the appellants to abide the event.

Dowling, P. J., Merrell and O’Malley, JJ., concur; Martin, J., dissents.

Judgment reversed and new trial ordered, with costs to the appellants to abide the event.

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Proskauer, J.

The plaintiff has had judgment for the value of his legal services claimed to have been rendered to all the defendants. The finding of the trial court as to the rendition and value of the services is amply sustained by the evidence. The corporate defendants challenge the judgment, however, upon the ground that the services for the most part were not rendered to them and that such work as the plaintiff performed for them was purely perfunctory and of merely nominal value. The stock of the defendant cor[458]*458porations was almost entirely owned by two brothers, Frank Auditore and Joseph Auditore. The administratrix of Joseph Auditore, charging Frank Auditore with waste of corporate funds and other misconduct as an officer and director of these corporations, brought a representative stockholders’ action. The corporations were made nominal defendants. Frank Auditore retained. the plaintiff’s firm as attorneys for himself and the corporations. In defending the action, however, the plaintiff’s firm was acting really in behalf of Frank Auditore and not beneficially for the corporations. We regard it as inequitable that the corporations should be called upon to pay for the defense of this action brought for their benefit and resulting in a judgment in favor of the plaintiff as a representative of the corporate interests. The amount of the plaintiff’s recovery against the corporations should be limited to the value of the labor of entering a nominal appearance for the corporations and formally appearing for them.

The judgment appealed from should be reversed and a new trial granted, with costs to the appellants to abide the event.

Dowling, P. J., Merrell and O’Malley, JJ., concur; Martin, J., dissents.

Judgment reversed and new trial ordered, with costs to the appellants to abide the event.

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223 A.D. 457, 228 N.Y.S. 489, 1928 N.Y. App. Div. LEXIS 6236, Counsel Stack Legal Research, https://law.counselstack.com/opinion/apfel-v-auditore-nyappdiv-1928.

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