Vinlis Construction Co. v. Roreck

New York Court of Appeals

Vinlis Construction Co. v. Roreck

262 N.E.2d 215, 27 N.Y.2d 687, 314 N.Y.S.2d 8, 1970 N.Y. LEXIS 1172

New York Court of Appeals·Decided July 1, 1970·Published·Cited by 19 cases

Opinion

Memorandum. Since the allegations of the complaint do not assert a fraud “aimed at the public generally” (Walker v. Sheldon, 10 N Y 2d 401, 405; see also, James v. Powell, 19 N Y 2d 249, 260), plaintiffs are not entitled to exemplary damages. The record contains all of the proof required to make a final disposition of this case. Based on the plaintiffs’ uncontradicted evidence, the net amount of compensatory damages is $74,942.67. In addition, the faithless trustee should be surcharged in the amount of $9,316, the salary paid him in the course of his stewardship. Plaintiffs are also entitled to interest from January 1,1955, as directed by the trial court.

Accordingly, the order should be modified by striking the award of exemplary damages and reducing the net amount of compensatory damages to $84,258.67.

Chief Judge Fuld and Judges Burke, Scileppi, Bergan and Gibson concur; Judge Breitel dissents and votes to affirm in the following memorandum, in which Judge Jasen concurs: Insufficient basis was shown to establish error and for that reason I would affirm generally. I would note agreement, however, with the majority that punitive damages were not allowable. But in [690]*690the confused state of this record and the briefs it is not possible for me to determine whether the several items of damages do not include an offset for the punitive damages.

Order modified in accordance with the memorandum herein, and, as so modified, affirmed, without costs.

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Memorandum. Since the allegations of the complaint do not assert a fraud “aimed at the public generally” (Walker v. Sheldon, 10 N Y 2d 401, 405; see also, James v. Powell, 19 N Y 2d 249, 260), plaintiffs are not entitled to exemplary damages. The record contains all of the proof required to make a final disposition of this case. Based on the plaintiffs’ uncontradicted evidence, the net amount of compensatory damages is $74,942.67. In addition, the faithless trustee should be surcharged in the amount of $9,316, the salary paid him in the course of his stewardship. Plaintiffs are also entitled to interest from January 1,1955, as directed by the trial court.

Accordingly, the order should be modified by striking the award of exemplary damages and reducing the net amount of compensatory damages to $84,258.67.

Chief Judge Fuld and Judges Burke, Scileppi, Bergan and Gibson concur; Judge Breitel dissents and votes to affirm in the following memorandum, in which Judge Jasen concurs: Insufficient basis was shown to establish error and for that reason I would affirm generally. I would note agreement, however, with the majority that punitive damages were not allowable. But in [690]*690the confused state of this record and the briefs it is not possible for me to determine whether the several items of damages do not include an offset for the punitive damages.

Order modified in accordance with the memorandum herein, and, as so modified, affirmed, without costs.

Vinlis Construction Co. v. Roreck, 262 N.E.2d 215, 27 N.Y.2d 687, 314 N.Y.S.2d 8, 1970 N.Y. LEXIS 1172 (N.Y. 1970).

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262 N.E.2d 215 (Vinlis Construction Co. v. Roreck) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.