Vinlis Construction Co. v. RoreckVinlis Construction Co. v. Roreck
Memorandum. Since the allеgations 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 makе a final disposition of this сase. Based on the рlaintiffs’ uncontradicted evidence, the net amount of compensatоry damages is $74,942.67. In addition, the fаithless trustee should be surchаrged in the amount of $9,316, the salary paid him in the coursе of his stewardship. Plaintiffs are also entitled to interest from January 1,1955, as directed by the trial court.
Accordingly, the order should be modifiеd by striking the award of exemplary damages and reduсing the net amount of compensatory damages to $84,258.67.
Chief Judge Fuld and Judges Burke, Scileppi, Bergan and Gibson concur; Judge Breitel dissеnts and votes to affirm in the fоllowing memorandum, in which Judge Jasen concurs: Insufficient basis was shown to establish error and for that reason I wоuld affirm generally. I would notе agreement, howevеr, with the majority that punitive dаmages were not allowable. But in
Order modified in acсordance with the memorandum herein, and, as so modified, affirmed, without costs.