Cataldo v. Hanover Insurance

Appellate Division of the Supreme Court of New York

Cataldo v. Hanover Insurance

33 A.D.2d 549, 304 N.Y.S.2d 612, 1969 N.Y. App. Div. LEXIS 3008

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

DecidedOctober 23, 1969

StatusPublished

This text of 33 A.D.2d 549 (Cataldo v. Hanover Insurance) 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

Cataldo v. Hanover Insurance, 33 A.D.2d 549, 304 N.Y.S.2d 612, 1969 N.Y. App. Div. LEXIS 3008 (N.Y. Ct. App. 1969).

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Opinion

Order entered November 4, 1968, denying defendant-appellant’s motion to dismiss the amended and supplemental complaint, unanimously reversed, on the law, without costs or disbursements, and the motion granted. The first two causes of action, which seek a declaratory judgment that plaintiff, an attorney, has a prior lien or interest in respect of a sum of money due from the United States of America to plaintiff’s client, are moot. The United States having effected a setoff of the fund for its own benefit, and the Government no longer being a party to the action, there is neither a res as to which the court may declare the parties’ rights nor.a party that would be bound by any judgment. The third cause of action fails to state a cause of action in unjust enrichment against the defendant-appellant surety. The latter received no property belonging to the plaintiff nor was plaintiff deprived of money or property belonging to him. The debt discharged by the setoff was not the defendant-appellant’s; it was the plaintiff’s client’s and it was the client’s money which discharged the debt. (United States v. Munsey Trust Co., 332 U. S. 234, 239.) Concur— Eager, J. P., Tilzer, McGivern, Markewich and Steuer, JJ.

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Order entered November 4, 1968, denying defendant-appellant’s motion to dismiss the amended and supplemental complaint, unanimously reversed, on the law, without costs or disbursements, and the motion granted. The first two causes of action, which seek a declaratory judgment that plaintiff, an attorney, has a prior lien or interest in respect of a sum of money due from the United States of America to plaintiff’s client, are moot. The United States having effected a setoff of the fund for its own benefit, and the Government no longer being a party to the action, there is neither a res as to which the court may declare the parties’ rights nor.a party that would be bound by any judgment. The third cause of action fails to state a cause of action in unjust enrichment against the defendant-appellant surety. The latter received no property belonging to the plaintiff nor was plaintiff deprived of money or property belonging to him. The debt discharged by the setoff was not the defendant-appellant’s; it was the plaintiff’s client’s and it was the client’s money which discharged the debt. (United States v. Munsey Trust Co., 332 U. S. 234, 239.) Concur— Eager, J. P., Tilzer, McGivern, Markewich and Steuer, JJ.

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Bluebook (online)

33 A.D.2d 549, 304 N.Y.S.2d 612, 1969 N.Y. App. Div. LEXIS 3008, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cataldo-v-hanover-insurance-nyappdiv-1969.

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