Arnold v. Pesikoff

Appellate Division of the Supreme Court of New York

Arnold v. Pesikoff

13 A.D.2d 621, 214 N.Y.S.2d 261, 1961 N.Y. App. Div. LEXIS 11607

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

DecidedApril 4, 1961

StatusPublished

This text of 13 A.D.2d 621 (Arnold v. Pesikoff) 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

Arnold v. Pesikoff, 13 A.D.2d 621, 214 N.Y.S.2d 261, 1961 N.Y. App. Div. LEXIS 11607 (N.Y. Ct. App. 1961).

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Opinion

Appeal from order entered on July 21, 1960, unanimously dismissed, without costs, such order having been merged in the order entered on October 19, 1960. No opinion. Order, entered on October 19, 1960, in summary proceeding brought under section 474 of the Judiciary Law, setting aside a purported agreement between petitioners and the attorney, directing a turnover of documents, and providing for a reference, unanimously reversed, on the law, on the facts, and in the exercise of 'discretion, with $20 costs and disbursements to abide the event, and the proceeding remanded to Special Term for the purpose of taking proof with respect to the contradicted claims of overreaching by the attorney. The rule expressed and restated in Matter of Cox v. Scott (10 A D 2d 32, 34) is applicable. Only if the proof is clear and convincing that there has been overreaching or other serious misconduct should the court entertain and exercise summary jurisdiction. The present record, however, is quite inadequate to make such determination, and because of the contradictions no determination should be made merely upon the affidavits. Upon such hearing the court will have a question whether summary jurisdiction should be retained or the petitioners relegated to proceeding by plenary action, if they are so advised. Concur — Breitel, J. P., Rabin, Valente, McNally and Eager, JJ.

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Appeal from order entered on July 21, 1960, unanimously dismissed, without costs, such order having been merged in the order entered on October 19, 1960. No opinion. Order, entered on October 19, 1960, in summary proceeding brought under section 474 of the Judiciary Law, setting aside a purported agreement between petitioners and the attorney, directing a turnover of documents, and providing for a reference, unanimously reversed, on the law, on the facts, and in the exercise of 'discretion, with $20 costs and disbursements to abide the event, and the proceeding remanded to Special Term for the purpose of taking proof with respect to the contradicted claims of overreaching by the attorney. The rule expressed and restated in Matter of Cox v. Scott (10 A D 2d 32, 34) is applicable. Only if the proof is clear and convincing that there has been overreaching or other serious misconduct should the court entertain and exercise summary jurisdiction. The present record, however, is quite inadequate to make such determination, and because of the contradictions no determination should be made merely upon the affidavits. Upon such hearing the court will have a question whether summary jurisdiction should be retained or the petitioners relegated to proceeding by plenary action, if they are so advised. Concur — Breitel, J. P., Rabin, Valente, McNally and Eager, JJ.

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Bluebook (online)

13 A.D.2d 621, 214 N.Y.S.2d 261, 1961 N.Y. App. Div. LEXIS 11607, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arnold-v-pesikoff-nyappdiv-1961.