Kress v. Manufacturers Trust Co.

250 A.D. 93, 293 N.Y.S. 646, 1937 N.Y. App. Div. LEXIS 8273

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 26, 1937
• Status: Published

Opinions

Townley, J.

We agree with the result reached by the learned

trial justice as to the claim for notarial fees earned by the plaintiff but collected and withheld from him by the defendant. (Pitsch v. Continental and Commercial National Bank of Chicago, 305 Ill. 265; 137 N. E. 198; Geddis v. Westside National Bank of West Paterson, N. J., 7 N. J. Misc. 245; 145 A. 731; affd., 106 N. J. L. 238; 148 A. 917; Kip v. Peoples Bank & Trust Co., 110 N. J. L. 178; 164 A. 253; Diehl, C. E., Inc., v. Sheehan, 258 N. Y. 624.) We cannot concur, however, with the further holding that plaintiff must give credit to the defendant for the salary paid during his employment on the theory that that salary amounted to a partial payment of the fees collected. The evidence is undisputed that plaintiff did clerical work, took many acknowledgments and affidavits for the bank without charge, frequently appeared in court, and notarized some 14,000 protests for which he has received no pay whatsoever because of the failure of the bank to collect his fees. The salary paid is rio more than a fair compensation for these extra items. To allow a credit of the salary against the fees collected would unjustly enrich the defendant at plaintiff’s expense.

The judgment should be modified by disallowing the salary credit and increasing it to $25,237.50, with interest from December 15, 1932, and as modified, affirmed, -with costs to the plaintiff.

Martin, P. J., Glennon and Untermyer, JJ., concur; Dore, J., dissents and votes to reverse and grant judgment for the defendant.