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CARISTO CONSTR. CORP. v. DINERS FIN. CORP.

21 N.Y.2d 507 (1968)

Caristo Construction Corporation, Respondent-Appellant, v. Diners Financial Corporation, Appellant-Respondent.

Court of Appeals of the State of New York.

Decided February 29, 1968.

Attorney(s) appearing for the Case

Albert Foreman, M. Carl Levine and Jerrold Morgulas for appellant-respondent.

Max E. Greenberg and Emanuel Harris for respondent-appellant.

Judges BURKE, SCILEPPI and JASEN concur with Judge BREITEL; Chief Judge FULD dissents and votes to reverse in a separate opinion in which Judges BERGAN and KEATING concur.

BREITEL, J.

The primary issue is whether a lender who, under an unfiled assignment of accounts, receives the payments made by a general contractor to a defaulting and now insolvent subcontractor, is liable for a diversion of trust funds under the Lien Law, although the lender, simultaneously with receipt of the payments, returned to the subcontractor "advances" in amounts equal to the payments. The lender, a...

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