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GREECE VOLUNTEER AMBULANCE SERVICE v. ROBERT W. SMITH ET AL. (07/02/69)

SUPREME COURT OF NEW YORK, MONROE COUNTY 1969.NY.42382 <http://www.versuslaw.com>; 301 N.Y.S.2d 865; 59 Misc. 2d 1065 July 2, 1969 GREECE VOLUNTEER AMBULANCE SERVICE, INC., PLAINTIFF,v.ROBERT W. SMITH ET AL., DEFENDANTS Holbrook, Nellis, Tofany & D'Aurizio (Franklin D'Aurizio of counsel), for plaintiff. Robinson & Glavin (Donald E. Robinson of counsel), for defendants. Marshall E. Livingston, J. Author: Livingston


Marshall E. Livingston, J.

Author: Livingston

 This is a civil action for damages, tried without a jury, concerning the embezzlement and conversion of plaintiff's funds by the defendant, Robert W. Smith, during the period between March 13, 1963 and November 3, 1966.

Jeanne M. Smith, the wife of Robert W. Smith, was joined as a co-defendant. Additional relief was also sought from Mrs. Smith, asking that she be directed to reconvey two parcels of realty formerly owned by the defendants, as tenants by the entirety, which are subject to the plaintiff's warrant of attachment. While these properties were duly attached, the defendant Robert W. Smith, by quitclaim deeds, conveyed them to his wife Jeanne M. Smith, who now holds title.

At the close of the proof, I directed a verdict in favor of the plaintiff against the defendant Robert W. Smith and dismissed the complaint against his wife, Jeanne M. Smith. I directed, however, that Jeanne M. Smith reconvey the subject realty to Robert W. Smith and herself, as tenants by the entirety, so that title thereto shall henceforth be held as it was when the plaintiff procured the warrants of attachment.

On March 19, 1963, at a special meeting of Greece Volunteer Ambulance Service, Inc., the defendant Robert W. Smith was duly elected its treasurer.

In October, 1966 the plaintiff's bank account became overdrawn, and an investigation was instituted. On October 27, 1966 Robert W. Smith signed a statement procured by George Adams, a representative of Travelers Indemnity Company, the surety on the treasurer's $8,000 bond.

Objection was made that the Miranda rule should preclude the statement, which admitted an embezzlement. The statement, which was the foundation supporting the finding that Robert W. Smith was liable to the plaintiff, was not given in circumstances whereby the Miranda rule applies. This is a civil action, and the criminal aspect has now been resolved. Robert W. Smith pleaded guilty prior to this action and has now served his sentence.

Although an objection was not made, I deem it important to also point out that the defendant's statement was an extra-judicial admission by him. If this statement had been used in the criminal prosecution, then defendant's Fifth Amendment rights, Miranda warnings and the like would have applied. However, the criminal aspect of this matter has been concluded, and as stated in Richardson, Evidence (9th ed., § 537, p. 551): "When the danger of prosecution has been effectively removed, the reason for the privilege against self-incrimination no longer exists and, consequently, the privilege cannot properly be asserted. Thus, where the prosecution for the offense which may be disclosed is barred by the doctrine of double jeopardy, or by the statute of limitations, or by executive pardon, or by reason of a grant of immunity, or in any other legally effective way, the witness may be compelled to answer." (Emphasis supplied.) See, also, Matter of Doyle (257 N. Y. 244, 250). The written statement given to the representative of the Travelers Indemnity Company was an admission against interest (Letendre v. Hartford Acc. & Ind. Co., 21 N.Y.2d 518; Notara v. De Kamalaris, 22 Misc. 337; 31A C. J. S., Evidence, pp. 769-772; 20 Syracuse L. Rev. 640).

Accordingly, the sole question remaining is how much the defendant Robert W. Smith owes to the plaintiff. Jeanne M. Smith, as suggested earlier in this opinion, is not liable for the embezzlement of her husband. No proof was offered imputing knowledge by her of his defalcations, that he was acting as her agent, or that she ratified his acts so as to make her liable along with her husband (see 15 N. Y. Jur., Domestic Relations, §§ 270, 272, 273, 283, 301).

There are certain amounts conceded by defendant Robert W. Smith to be due plaintiff. These may be summarized as follows:

1. Amounts withdrawn from plaintiff's

checking account for the personal use

of Robert W. Smith ...


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