Weinberg v. Askinas

231 A.D. 757

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1930
• Status: Published

Opinion

“ Judgment and order ” directing judgment in the sum of $829.39 modified by striking out the sum of $350, awarded as an extra allowance, and the sum of $167.38, awarded as a recovery by the respondent against the appellants. The remainder of said so-called judgment and order is further modified by striking out the appellants as individuals against whom any recovery may be had, and by providing that the recovery of costs amounting to $312 against appellant Weinberg, as receiver, constitutes the extent of the recovery for which a judgment may enter. As so modified said order and judgment are unanimously affirmed, without costs. Appeal from order denying motion to resettle order is dismissed, without costs, because not necessary in view of the disposition made of the appeal from the so-called judgment and order. We are of opinion that the limitations of the reference did not empower the entry of an affirmative judgment in favor of the respondent, that the extra allowance was unwarranted in this special proceeding, and that the remainder of the recovery, as to which complaint only is made in so far as it sought to hold the appellants individually therefor, was improper in the absence of proof of bad faith in the commencement of the proceeding by the receiver, of which there is no evidence nor any report to that effect by the official referee. Present — Lazansky, P. J., Kapper, Hagarty, Carswell and Seudder, JJ.