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KAUFMAN v. DIVERSIFIED INDUS.

January 29, 1973

Aubrey KAUFMAN, Plaintiff,
v.
DIVERSIFIED INDUSTRIES, INC., Defendant


Levet, District Judge.


The opinion of the court was delivered by: LEVET

OPINION, FINDINGS OF FACT and CONCLUSIONS OF LAW UPON REMAND.

LEVET, district Judge. On or about July 7, 1971 this court filed an Opinion, Findings of Fact and Conclusions of Law which awarded plaintiff -- (1) for breach of contract $100,759.95 (see App. p. 346a in appeal record) (2) for indemnity of plaintiff for at- torneys fees $ 33,585.00 (see App. p. 357a)

 In the opinion of the Court of Appeals, filed May 22, 1972, 460 F.2d 1331 (2d Cir. 1972), the amount of damages to which plaintiff was entitled was reduced from $100,759.98 to $25,888.50. (At 1338.)

 The Court of Appeals in its opinion stated:

 
"III. Other Recovery
 
"In addition to the damages occasioned by non-delivery Kaufman is entitled under section 6 of the agreement to indemnification for 'reasonable costs, legal and other expenses' incurred as a result of Diversified's breach. Since we have reduced the damage award significantly and legal fees depended on a contingent fee agreement which Judge Levet considered in making his award, it follows that Judge Levet should reconsider damages under the indemnification clause. n.9 [Footnote Omitted]
 
"Finally, we agree that Kaufman is entitled to interest on the damage award pursuant to New York C.P.L.R. ยง 5001, which upon remand will be adjusted in light of the reduced recovery.
 
"We have examined the other arguments of the parties, but find them to be without merit.
 
"Affirmed in part, reversed in part and remanded for further proceedings in accordance with this opinion." (At 1338.)
 
In footnote 9 the opinion also stated:
 
"The district judge should be mindful that allowable costs have increased because of this appeal and the further proceedings that will be required. Since costs on appeal would be recoverable under the indemnity clause of the contract, it would be a waste of time to take the circuitous route of awarding costs on appeal against Kaufman only to permit him to be indemnified for these costs by Diversified. Accordingly, we direct that the costs on appeal be taxed against Diversified." (At 1338.)

 In the trial court's opinion, the facts relative to the claims for attorneys' fees were set forth in Findings of Fact 15 through 23. (See Joint App. 347a-353a.) Likewise, in the same opinion the court's findings with respect to expenses of plaintiff's attorneys were set forth in the Joint Appendix 354a-356a.

 The contract between plaintiff and defendant dated May 9, 1968, insofar as it relates to indemnity, is set forth in Joint Appendix 346a, paragraph 6. This provision was as follows:

 
"6. INDEMNITY BY DIVERSIFIED. Diversified hereby agrees to indemnify and hold each of the Stockholders harmless for a period of 36 months from the Closing Date against and in respect of any and all losses, claims, liabilities, damages or deficiencies resulting from any misrepresentation, breach of warranty or other breach hereof or failure of compliance by Diversified under this Agreement or in any document furnished to the Stockholders hereunder, and any and all reasonable costs, legal or other expenses incident to the foregoing.
 
"If any loss or other basis for indemnification by Diversified to the Stockholders hereunder shall result in any tax saving or other monetary benefit to the Stockholders, the amounts recoverable by the Stockholders ...

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