McCarthy Co., Inc. v. Hill

New York Court of Appeals

McCarthy Co., Inc. v. Hill

67 N.E.2d 375, 295 N.Y. 320, 1946 N.Y. LEXIS 837

CourtNew York Court of Appeals

DecidedApril 18, 1946

StatusPublished

Cited by4 cases

This text of 67 N.E.2d 375 (McCarthy Co., Inc. v. Hill) 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.

Bluebook

McCarthy Co., Inc. v. Hill, 67 N.E.2d 375, 295 N.Y. 320, 1946 N.Y. LEXIS 837 (N.Y. 1946).

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Opinion

Per Curiam-.

Testimony of the plaintiff’s sole stockholder, to the effect that he was ignorant of Cunningham’s withdrawals of cash from the plaintiff corporation until after the latter’s *324 death, should have beeu excluded under Civil Practice Act, section 347 (Boyd v. Boyd, 164 N. Y. 234, 244; Clift v.Moses, 112 N. Y. 426). Although the action in form was for an accounting, there was neither allegation nor proof that Cunningham received anything for which he was accountable to the plaintiff except cash withdrawn without authority. Under these circumstances no action for an accounting could be brought (Dunlap’s Sons, Inc., v. Spurr, 285 N. Y. 333), and the defendants were entitled to trial by a jury, which was demanded and refused.

The order of the Appellate Division, reversing the order of Special Term granting defendants’ motion to dismiss the twentieth cause of action in the amended complaint, should, be reversed, and the order granting such motion affirmed.

The judgment entered May 23,1945, upon the order of affirmance of the Appellate Division dated May 18, 1945, should be reversed, with costs in all courts.

Loughran, Ch. J., Lewis, Conwat, Desmond, Thacher and Dte, JJ., concur; Medalie, J., deceased.

Ordered accordingly.

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Per Curiam-.

Testimony of the plaintiff’s sole stockholder, to the effect that he was ignorant of Cunningham’s withdrawals of cash from the plaintiff corporation until after the latter’s *324 death, should have beeu excluded under Civil Practice Act, section 347 (Boyd v. Boyd, 164 N. Y. 234, 244; Clift v.Moses, 112 N. Y. 426). Although the action in form was for an accounting, there was neither allegation nor proof that Cunningham received anything for which he was accountable to the plaintiff except cash withdrawn without authority. Under these circumstances no action for an accounting could be brought (Dunlap’s Sons, Inc., v. Spurr, 285 N. Y. 333), and the defendants were entitled to trial by a jury, which was demanded and refused.

The order of the Appellate Division, reversing the order of Special Term granting defendants’ motion to dismiss the twentieth cause of action in the amended complaint, should, be reversed, and the order granting such motion affirmed.

The judgment entered May 23,1945, upon the order of affirmance of the Appellate Division dated May 18, 1945, should be reversed, with costs in all courts.

Loughran, Ch. J., Lewis, Conwat, Desmond, Thacher and Dte, JJ., concur; Medalie, J., deceased.

Ordered accordingly.

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Bluebook (online)

67 N.E.2d 375, 295 N.Y. 320, 1946 N.Y. LEXIS 837, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccarthy-co-inc-v-hill-ny-1946.

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