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ANTHONY B. CATALDO v. HANOVER INSURANCE COMPANY (10/23/69)

October 23, 1969

ANTHONY B. CATALDO, RESPONDENT,
v.
HANOVER INSURANCE COMPANY, APPELLANT, ET AL., DEFENDANTS



Concur -- Eager, J. P., Tilzer, McGivern, Markewich and Steuer, JJ.

The first two causes of action, which seek a declaratory judgment that plaintiff, an attorney, has a prior lien or interest in respect of a sum of money due from the United States of America to plaintiff's client, are moot. The United States having effected a setoff of the fund for its own benefit, and the Government no longer being a party to the action, there is neither a res as to which the court may declare the parties' rights nor a party that would be bound by any judgment. The third cause of action fails to state a cause of action in unjust enrichment against the defendant-appellant surety. The latter received no property belonging to the plaintiff nor was plaintiff deprived of money or property belonging to him. The debt discharged by the setoff was not the defendant-appellant's; it was the plaintiff's client's and it was the client's money which discharged the debt. (United States v. Munsey Trust Co., 332 U.S. 234, 239.)

Disposition

Order entered November 4, 1968, denying defendant-appellant's motion to dismiss the amended and supplemental complaint, unanimously reversed, on the law, without costs or disbursements, and the motion granted.

19691023

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