21 Misc. 2d 1082 | N.Y. Sup. Ct. | 1959
This trial by order of Mr. Justice Francis X. Conlon dated November 19, 1959 was to assess the amount of damages. Summary judgment had been granted, the elements of damage to be ascertained being (1) the interest on the value of the attached properties during the periods of the sucessive levies, and (2) the reasonableness of the counsel fees billed to plaintiff for services in the attachment proceeding. The Penn-Texas Corporation in August, 1958 brought suit against one Leopold D. Silverstein, former chief executive officer, and David L. Subin, plaintiff herein, for damages caused by an alleged conspiracy and waste of assets of said corporation. Based on Subin’s nonresidence in New York, said Penn-Texas first attached $1,726,721.31 of Subin’s cash and securities in New York banks and security dealers’ hands. The warrant was limited to $300,000 and the undertaking of the instant defendant was only $15,000. The attachment date was August 11 and prompt action by counsel for Subin released all over $350,000 of the attached funds. Immediately a second attachment warrant was obtained by Penn-Texas against Subin’s property and the levies thereunder of August 15 and 18 effectively tied up $1,207,497.87 until released by vacatur of said warrants on September 23,1958.
Penn-Texas had posted two undertakings of the instant defendant, United States Fidelity and Guaranty Company,
Plaintiff should have judgment for the interest on the value of the attached property during the attached periods. From August 11 to August 15, 1958, some $1,726,721.73 was under levy. On the latter date all but $350,000 was released. For that period the interest calculated at 6% is $1,438.93. On the twc successive warrants the sum of $1,207,497.87 was tied up fror August 15, 1958 to September 23, 1958. The interest on tnis sum is $7,647.49, making a total loss of interest $9,086.42, for which judgment is rendered. The recent development of the law recognizes the correctness of this conclusion. (McNaughton v. International Diesel Elec. Co., 286 App. Div. 1021.) 1 ‘ Damages ’ ’ is the result of depriving the owner of the use of his property. This constitutes the compensation to the owner, or possibly the civil penalty on the wrongdoer for having wrongfully invaded the owner’s enjoyment of his property. (Flamm v. Noble, 296 N. Y. 262, 268.) Interest at the legal rate of 6% is proper because it is the rate authorized for damages for unlawful detention of an owner’s property.