Mobil Oil Corp. v. Livingston

37 A.D.2d 796, 324 N.Y.S.2d 666

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 24, 1971
• Docket: Appeal No. 1
• Status: Published

Opinion

Judgment unanimously affirmed, with costs. Memorandum: Upon the trial record and in the absence of the findings required by CPLR 4213 (subd. [b]) this court makes the following findings (see Weidman v. Klot, 11 A D 2d 641, Phelps v. State Mut. Life Assur. Co., 10 A D 2d 60; 4 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 4213.09). Defendant received the sum of $35,000 under a land purchase contract as the escrow agent of plaintiff, as purchaser, and Sherman, Schmerzler, and Schechner, former clients of defendant, as sellers. Such contract provided that “ [the escrow account] shall be released by him [escrow agent] to Seller upon the date of title closing * * * or upon receipt of written authorization from Purchaser’s attorney that he may release said moneys. Prior to the release of said monies, the escrow agent shall be entitled to a release of his obligations under the escrow herein from both Sellers and Purchaser ”. The parties subsequently agreed to terminate the contract and each delivered to defendant releases of “ any and all obligations under the escrow agreement ”. The releases given by the pur. chaser and sellers were sufficient in form to comply with the purchase contract under which the payments were made to defendant in escrow. Defendant’s refusal to release to plaintiff the moneys so paid was wrongful and entitled plaintiff to the judgment granted by the trial court. (Appeal from judgment of Onondaga Trial Term, in action to recover moneys in escrow.) Present — Del Veechio, J. P., Marsh, Gabrielli, Moule and Henry, JJ.