244 A.D. 255 | N.Y. App. Div. | 1935
The decision in favor of the defendants, respondents, is against the weight of evidence and contrary to the oral and written evidence. The respondents’ contention that a different decision must be predicated, in whole or part, upon the testimony of a confessed perjurer (Fighera) is unsound. The decision that has been had rests essentially, in whole or part, upon the testimony of Giordano, a confessed perjurer.
The testimony of defendant Rubel is, in effect, disregarded by the decision that has been had. A proper approach to a correct determination of the facts involves acceptance of most of the testimony of defendant Rubel. His testimony that all the elements contained in the contract of February 5, 1930 (Plaintiff’s Exhibit 1), were the subject of complete agreement before the demand for the additional $50,000 was made (although he faltered slightly on cross-examination), is supported by the testimony of Pagona and Hertzberg. The surrounding circumstances reinforce the view
The individuals involved in the Prudential venture agreed that the assets of the Prudential Corporation should be commingled with their personal property rights to engage, in the future, in the wholesale ice business. They evidenced their acquiescence in the Prudential Corporation’s making the sale of these interests (otherwise the proper subject of sale by the individuals alone) by signing the agreement reciting the sale of these personal property elements and its corporate assets for a single consideration.
If Rubel had no improper or ulterior purpose to serve he would not have made his payment in a form which enabled the recreant officers, Fighera and Giordano, to violate their trust. At the time he dealt with Giordano and Fighera, he bought from Giordano the business of Giordano Brothers, and in that agreement obtained a ten-year restrictive covenant that bound Giordano, the treasurer of the Prudential Corporation, with respect to both the wholesale and the retail ice business. This agreement was made, Rubel’s counsel concede in their brief and the evidence establishes, at the same time that the $50,000 payment was agreed to. Therefore, after that sale Giordano had nothing to sell to Rubel by way of a personal covenant, so far as plaintiff’s Exhibit 1 was concerned, which exhibit included the sale of the Prudential plant. All that
There is, in this view, no escaping the conclusion that the $50,000 paid by Rubel was a bribe and that it represented a part payment for the property rights and interests recited in plaintiff’s Exhibit 1.
However, since the recreant officers, Fighera and Giordano, have already profited by this payment, they should not be permitted to again profit, and the judgment should so provide.
The liability on the law of Fighera, Giordano and Rubel and Rubel Corporation is clear under the cases. (Billings v. Shaw, 209 N. Y. 265; Meinhard v. Salmon, 249 id. 458; Public Shoe Stores, Inc., v. Goldstein, 225 App. Div. 350.)
The case of Bristol v. Scranton (63 Fed. 218) is readily distinguished. It concerned a sale under a separate instrument of personal rights, made at a time that certain corporate rights were sold under a different instrument. The whole proceedings were conducted, as the court found, openly and fairly. There was no surreptitious side arrangement such as is involved herein. There were no payments in currency handed over under circumstances of furtiveness and indicative of guilty knowledge on the part of the one turning over the money. The case has no application herein.
Common honesty and ordinarily accepted standards of business morality require that the real nature of the transaction involved herein be not sanctioned to the detriment of the corporation acting for itself and individuals unaware of the surreptitious arrangement.
The total amount of the judgment against the recreant officers Fighera and Giordano should be $50,000, but the judgment against Eubel and the Eubel Corporation should be the same sum less the percentage thereof (equal to their proportionate ownership in the corporation) that would go (but for their misconduct) to Fighera and Giordano as stockholders of the Prudential Ice and Coal Corporation. A computation of this amount may be made on the evidence or agreed to and incorporated in the new findings. Equity does not make adjustments as between wrongdoers, but does bestir itself to prevent a wrongdoer profiting from his misconduct.
The judgment should be reversed on the law and the facts, with costs, and judgment directed in favor of the plaintiff, appellant, Jacobellis, and defendant, appellant, Limitone, for the benefit of the Prudential Ice and Coal Corporation and its stockholders, except defendants Fighera and Giordano, against all the defendants except Limitone, in the sum of $50,000, with costs, less the proportionate share thereof that would to to Fighera and Giordano, as stockholders, but for their misconduct; also a separate judgment for that lesser sum, so computed, for the benefit of the Prudential Ice and Coal Corporation against defendants Fighera and Giordano.
Lazansky, P. J., Young, Carswell and Scudder, JJ., concur; Johnston, J., not voting.
Judgment reversed on the law and the facts, with costs, and judgment directed in favor of the plaintiff, appellant, Jacobellis, and defendant, appellant, Limitone, for the benefit of the Prudential Ice and Coal Corporation and its stockholders, except defendants Fighera and Giordano, against all the defendants except Limitone, in the sum of $50,000, with costs, less the proportionate share thereof that would go to Fighera and Giordano, as stockholders, but for their misconduct; also a separate judgment for that lesser sum, so computed, for the benefit of the Prudential Ice and Coal Corporation against defendants Fighera and Giordano. Findings of fact and conclusions of law inconsistent with this decision are reversed and new findings and conclusions will be made.
Settle order on notice.