SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
November 19, 1968
MARTIN GOTTLIEB, INDIVIDUALLY AND AS A SHAREHOLDER OF P.B.G. REALTY, INC., SUING ON BEHALF OF HIMSELF AND ALL OTHER SHAREHOLDERS OF SAID CORPORATION AND FOR THE BENEFIT OF SAID CORPORATION, APPELLANT,
PHILIP PUTTER ET AL., RESPONDENTS. (ACTION NO. I.) P.B.G. REALTY, INC., ET AL., RESPONDENTS, V. MARTIN GOTTLIEB, APPELLANT. (ACTION NO. II.)
Concur -- Botein, P. J., Eager, Steuer, Capozzoli and McNally, JJ.
We agree in the main with the conclusions arrived at by the trial court. One of the issues in the action for rescission was the sum to be returned to defendant in order to restore him to his position before entering into the contract. The court found that this was the amount he had invested. The determination overlooks the fact the plaintiffs had the use of the money which was employed to their advantage. Allowing plaintiffs to profit by that use without paying interest would unjustly enrich them at appellant's expense. In Action No. I the court allowed defendants, as an item of recovery, the premium paid on a bond to cancel a lis pendens filed by the plaintiff therein. At the time of filing and up to the decision in Action No. II plaintiffs' right to maintain the status quo was not challenged. Defendant could not tax the premium as a disbursement (CPLR 8301) and it was improper to allow it as an item of recovery.
Action No. I -- Judgment unanimously modified on the law to strike the disbursement of $9,600, and as so modified affirmed, without costs or disbursements. Action No. II -- Judgment unanimously modified on the facts and the law to add interest at 6% from the date of appellant's investment on the sum awarded by the court and as so modified, affirmed, without costs or disbursements.
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