SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
March 4, 1969
ROYAL BUSINESS FUNDS CORPORATION, APPELLANT,
LEONARD RUSKIN, RESPONDENT
Concur -- Capozzoli, J. P., Nunez, McNally, Steuer and Bastow, JJ.
We agree with the findings of Trial Term and confirm the same with the following exception. Defendant Ruskin, an officer of the corporate plaintiff and mortgagee of a chattel mortgage given by it, seized its assets on foreclosure and sold the same. On such sale it was incumbent on him, not the plaintiff, to show that he received full value for the assets sold (New York Credit Men's Adjustment Bureau v. Weiss, 305 N. Y. 1). Trial Term's finding that he did receive full value was based on a conclusion that the plaintiff was under the burden of proving that he did not. The factual question should be resolved in the light of the burden being on defendant Ruskin.
Judgment entered herein on February 8, 1968, unanimously reversed on the law and a new trial ordered as indicated below, with costs to abide the event.
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