Harold Moorstein & Co., Inc. v. Excelsior Ins. Co. of Syracuse

New York Court of Appeals

Harold Moorstein & Co., Inc. v. Excelsior Ins. Co. of Syracuse

254 N.E.2d 766, 25 N.Y.2d 651, 306 N.Y.S.2d 464, 1969 N.Y. LEXIS 966

New York Court of Appeals·Decided November 26, 1969·Published·Cited by 5 cases

Opinion

Memorandum.

The order of the Appellate Division should be affirmed. The affidavits submitted on the motion for summary judgment were unanimous as to the intent of the parties to the assignment. Hence, there was no issue of fact to be determined and summary judgment was proper. However, we note that the dictum in the opinion below, interpreting Stathos v. Murphy (26 A D 2d 500, affd. 19 N Y 2d 883) to give the assignee of proceeds of a claim priority over attaching lienors, is clearly incorrect. As was pointed out in the opinion in Stathos (at pp. 503-504), the assignment of after-acquired proceeds of a claim is generally considered an assignment only of a future right and, therefore, the assignment does not give the assignee priority over lienors who have attached before the proceeds have come into existence.

Chief Judge Fuld and Judges Burke, Soileppi, Bergan, Breitel, Jasen and Gibson concur.

Order affirmed, with costs, in a memorandum.

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Memorandum.

The order of the Appellate Division should be affirmed. The affidavits submitted on the motion for summary judgment were unanimous as to the intent of the parties to the assignment. Hence, there was no issue of fact to be determined and summary judgment was proper. However, we note that the dictum in the opinion below, interpreting Stathos v. Murphy (26 A D 2d 500, affd. 19 N Y 2d 883) to give the assignee of proceeds of a claim priority over attaching lienors, is clearly incorrect. As was pointed out in the opinion in Stathos (at pp. 503-504), the assignment of after-acquired proceeds of a claim is generally considered an assignment only of a future right and, therefore, the assignment does not give the assignee priority over lienors who have attached before the proceeds have come into existence.

Chief Judge Fuld and Judges Burke, Soileppi, Bergan, Breitel, Jasen and Gibson concur.

Order affirmed, with costs, in a memorandum.

Harold Moorstein & Co., Inc. v. Excelsior Ins. Co. of Syracuse, 254 N.E.2d 766, 25 N.Y.2d 651, 306 N.Y.S.2d 464, 1969 N.Y. LEXIS 966 (N.Y. 1969).

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254 N.E.2d 766 (Harold Moorstein & Co., Inc. v. Excelsior Ins. Co. of Syracuse) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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