Biscayne-Gallowhur Corp. v. Smith

Judgment entered February 21, 1962 and orders appealed from unanimously modified, on the law, to the extent of computing the interest recoverable only from August 3, 1961, the date of the commencement of the action, and are otherwise affirmed, with costs to plaintiff-respondent. The action was commenced with the granting of a warrant of attachment against the property transferred to defendant-respondent Smith (Civ. Prac. Act, §§ 16, 218, 825, 905; Schram v. Keane, 279 N. Y. 227, 232-236; Import Chem. Co. v. Forster & Gregory, 172 App. Div. 406, 409-410; Logan v. Greenwich Trust Co., 144 App. Div. 372, 375). In this action under section 15 of the Stock Corporation Law against officers and directors of a corporation for damages resulting from a preferential transfer to one of them, summary judgment was granted and damages assessed including interest computed from the date of the transfer. In the absence of a demand or fraud, interest should be computed from the date of the commencement of the action (MacIntyre v. State Bank of Albany, 307 N. Y. 630; Doyle v. Levy, 3 A D 2d 908, affd. 4 N Y 2d 1015). There was eoncededly no demand and fraud was neither alleged in the pleading nor asserted on the motion. Settle order on notice. Concur — Breitel, J. P., Rabin, McNally, Eager and Steuer, JJ.