Atkinson v. McCabe Hanger Manufacturing Co. ( 1946 )

Cross appeals from a resettled judgment of the Supreme Court, entered September 12, 1946, in New York County, upon a decision of the court on a trial at Special Term, (1) denying applications of defendant Laura M. French and another for expenses; (2) canceling of record a Us pendens against real property indexed against the names of defendants McCabe Hanger Manufacturing Company and others; (3) dismissing an amended complaint on the merits as to defendants Laura M. French and others; (4) awarding judgment in favor of defendant McCabe Hanger Manufacturing Company against defendant J. Newcomb Blackman, and (5) vacating an order entered January 17,1945; in New York County, impounding certain funds and directing that the balance of said funds, after payment of all valid debts of the company, be distributed among the plaintiff and certain defendants.' Plaintiff appeals from the whole of said judgment. Defendant J. Newcomb Blackman appeals from so much thereof as directed that defendant company have judgment against him, and from the final paragraph directing distribution insofar as it might be construed to reduce the sums owing to him. Defendants Laura M. French and Stoughton P. Cross appeal from so much thereof as denied their application for expenses in connection with the defense of the action, to be assessed against defendant company.

Per Curiam.

We are of the opinion that the evidence does not justify the finding and judgment against the defendant Blackman. He is entitled to be relieved from the judgment, therefore, and the defendants Cross and French as successful defendants are entitled to an assessment of their reasonable expenses against the McCabe Hanger Manufacturing Company.

The judgment should be modified by dismissing the complaint as to all defendants and by awarding the defendants Cross and French each the sum of $1,500 as their reasonable expenses assessed against the McCabe Hanger Manufacturing Company, and, as so modified affirmed, with costs of this appeal to appellants.

Martin, P. J., Glennon, Cohn, Callahan and Peck, JJ., concur.

Judgment unanimously modified by dismissing the complaint as to all defendants and by awarding defendants Cross and French each the sum' of $1,500 as their reasonable expenses assessed against the McCabe Hanger Manufacturing Company, and as so modified affirmed, with costs of this appeal to the appellants. Settle order on notice.