Niagara Mills, Inc. v. Du Boff

Appellate Division of the Supreme Court of New York

Niagara Mills, Inc. v. Du Boff

13 A.D.2d 649, 213 N.Y.S.2d 926, 1961 N.Y. App. Div. LEXIS 11264

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 25, 1961

StatusPublished

This text of 13 A.D.2d 649 (Niagara Mills, Inc. v. Du Boff) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Niagara Mills, Inc. v. Du Boff, 13 A.D.2d 649, 213 N.Y.S.2d 926, 1961 N.Y. App. Div. LEXIS 11264 (N.Y. Ct. App. 1961).

Pincite

Opinion

Judgment entered upon an order granting defendants’ motion for summary judgment, unanimously reversed, on the law and on the facts, with costs to appellant, and the motion for summary judgment denied, with $10 costs. Triable issues are presented as to whether defendants, who were retained by plaintiff as public adjusters on a claim for a loss on fire insurance policies with Lloyds of London, fraudulently misrepresented the terms under which Lloyds of London was prepared to settle the claim, with particular reference as to salvage. The form the settlement eventually took does not eliminate plaintiff’s cause of action for the alleged fraud and deceit, since it may be shown that such procedure' merely was a step in the consummation of the alleged fraud. Since defendants were acting-in a fiduciary capacity, plaintiff should have the opportunity upon a trial to explore all the facts. As to the second cause of action, based on duress, there are also triable issues. Since defendants had no lien on the proceeds, an issue is posed as to whether under the circumstances, they were entitled to retain the check or whether there was a wrongful detention or conversion of it. Concur-—Botein, P. J., Valente, Stevens, Eager and Bergan, JJ.

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Judgment entered upon an order granting defendants’ motion for summary judgment, unanimously reversed, on the law and on the facts, with costs to appellant, and the motion for summary judgment denied, with $10 costs. Triable issues are presented as to whether defendants, who were retained by plaintiff as public adjusters on a claim for a loss on fire insurance policies with Lloyds of London, fraudulently misrepresented the terms under which Lloyds of London was prepared to settle the claim, with particular reference as to salvage. The form the settlement eventually took does not eliminate plaintiff’s cause of action for the alleged fraud and deceit, since it may be shown that such procedure' merely was a step in the consummation of the alleged fraud. Since defendants were acting-in a fiduciary capacity, plaintiff should have the opportunity upon a trial to explore all the facts. As to the second cause of action, based on duress, there are also triable issues. Since defendants had no lien on the proceeds, an issue is posed as to whether under the circumstances, they were entitled to retain the check or whether there was a wrongful detention or conversion of it. Concur-—Botein, P. J., Valente, Stevens, Eager and Bergan, JJ.

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Bluebook (online)

13 A.D.2d 649, 213 N.Y.S.2d 926, 1961 N.Y. App. Div. LEXIS 11264, Counsel Stack Legal Research, https://law.counselstack.com/opinion/niagara-mills-inc-v-du-boff-nyappdiv-1961.