The opinion of the court was delivered by: CONGER
The defendant moved at the close of the plaintiff's case to dismiss the complaint upon various grounds and also for a directed verdict. He renewed the motions after the jury had returned a verdict for the plaintiff in the sum of $ 6,000. He then moved also for a new trial on the same grounds plus the ground that the verdict was against the weight of evidence and should be set aside.
The action is one at law in which the plaintiff seeks recovery of trust funds in an amount in excess of $ 6,962 comprising part of the proceeds of a private settlement of a stockholder's derivative suit, The funds were turned over to defendant by his brother, Milton I. Milvy, an attorney, in various amounts from time to time commencing August 18, 1938.
It appears that Milvy represented certain plaintiffs in a stockholder's derivative action commenced on January 4, 1938 in the Supreme Court, New York County, against certain persons who then were, and other persons who had been, officers and directors of Associated Gas & Electric Company, such action being known as Russell et al. v. Hopson et al.
It further appears that on or about July 7, 1938, there was a private settlement and compromise of said suit under the terms of which there was paid on behalf of the defendants to Milvy the sum of $ 21,000. The plaintiffs simultaneously executed and delivered releases and also delivered certificates representing 181 shares of the Class A and 2 shares of the common stock of Associated Gas & Electric Company which the plaintiffs owned. Such shares had a total value of $ 204.88.
The defendant had cooperated and participated with Milvy in the action and he received a portion of the $ 21,000.
The following interrogatories were submitted to the jury, and answered by them:
'Did defendant receive money from Milton I. Milvy with knowledge that such money was being paid to him as part of the proceeds of the settlement of the stockholder's derivative action in the New York Supreme Court entitled Russell, et al. v. Hopson, et al?'
'If so, how much did defendant receive?'
'State when such sum or sums were so received by defendant.'
'August 18, 1938 . . . $ 500.00
September 13, 1938 . . . $ ...