holding that damages are considered “to the extent of the value of the item at the time of trial” where an item is “unique and irreplaceable.”
How later courts described this case
- holding that damages are considered “to the extent of the value of the item at the time of trial” where an item is “unique and irreplaceable.”
Written by the judges who cited it.
The opinion
Kupferman, J. (concurring in part and dissenting in part).
While there is much wisdom in the dissents, the conflict of interest in which the executors placed themselves cannot be ignored. (See Matter of Scarborough, 25 NY2d 553, 558.) Executor Reis drafted and supervised the execution of the will. He was a certified public accountant, and although not licensed to practice law, had graduated from law school. If there was meant to be a continuation of the previous relationship without an arm’s length negotiation or prior court approval, the will could have so provided.
Despite the fact that the application of the determination in Menzel v List ( 24 NY2d 91 ) requires that the injured party receive the full benefit of a proper bargain, this does not mean that we can ignore the relationship between the parties. There was the previous supplementary agreement entered into in February, 1969, which gave to Rothko the right to require the purchase by Marlborough (in the nature of a "put”) of up to four paintings a year for eight years. This would have meant for some part of that period a price less than was found by the Surrogate inasmuch as that contract provided for a payment of 90% of "then current selling prices” with respect to these items. Further, Marlborough has returned paintings and received credit for the return of any paintings that the administratrix c.t.a. would agree to accept. She has rejected some. If we affirm the Surrogate’s determination, based on an average of $90,000 for a work on canvas, and $28,000 for a work on paper, we must recognize that these figures are what they purport to be, just an average. On that basis, the administratrix should not have a choice, but should be compelled to accept as a reduction of damage whatever is proffered to her. In addition, the valuation for the purpose of damages did not take into consideration a possible deduction for an agent’s commission or selling or promotion services. (Cf. Sheldon v Metro-Goldwyn Corp., 309 US 390 .)
Although I have expressed reservations with respect to
*506 various factors to be considered in the calculation of damages, I concur in the basic conclusion and, therefore, in order to resolve the matter for the purpose of appeal, vote to modify as per the opinion of Justice Lane.