Northville Dock Corp. v. Aller

15 A.D.2d 947, 226 N.Y.S.2d 313, 1962 N.Y. App. Div. LEXIS 10910

Opinion

The findings of fact implicit in the jury’s verdict are affirmed. Said defendants, who were not the judgment debtors 'but were the transferees of their property, were charged with participating in the conspiracy. One of the transfers of the judgment debtors’ assets occurred before the rendition of plaintiff’s judgment and before plaintiff obtained any lien on such assets. While the complaint sought various forms of equitable relief, as against said defendants it sought money damages only. At the close of the evidence and without objection, the trial court struck out the claims for equitable relief and submitted the case to the jury solely as one for damages against said defendants. Under the circumstances presented, plaintiff failed to establish a cause of action for damages against the said defendants (cf. Braem v. Merchants’ Nat. Bank, 127 N. Y. 508; Kaspin v. Thaw, 262 App. Div. 861, and cases cited therein). A prior determination of the Special Term sustaining the sufficiency of the complaint does not constitute the law of the case in this court (Rager v. McCloskey, 305 N. Y. 75, 78; Walker v. Gerli, 257 App. Div. 249; Rubinstein v. Rubenstein, 272 App. Div. 1042). Kleinfeld, Acting P. J., Christ, Brennan, Rabin and Hopkins, JJ., concur.