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

CourtNew York Court of Appeals

DecidedNovember 26, 1969

StatusPublished

Cited by5 cases

This text of 254 N.E.2d 766 (Harold Moorstein & Co., Inc. v. Excelsior Ins. Co. of Syracuse) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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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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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.

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254 N.E.2d 766, 25 N.Y.2d 651, 306 N.Y.S.2d 464, 1969 N.Y. LEXIS 966, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harold-moorstein-co-inc-v-excelsior-ins-co-of-syracuse-ny-1969.

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