
    Earl Bucci, Plaintiff, v. Dante Scaccia, Defendant.
    County Count, Schenectady County,
    December 28, 1960.
    
      Earl Bucci, plaintiff in person. Dante Scaccia, defendant in person.
   Archibald O. Wemple, J.

The essence of the controversy herein involved the nonpayment of $15 allegedly due to the plaintiff as a member of the Niskayuna Town Democratic Committee. The defendant is Town Chairman of the Niskayuna Town Democratic Committee and is also treasurer of the Schenectady County Democratic Committee. The plaintiff contends that a check in the amount of $15 due him for services as a Democratic Town Committeeman was made out with his name as payee but that delivery to him was withheld by defendant. The answering affidavit states that the check was cancelled and a new check made payable to cash at the direction of the defendant. It appears that plaintiff never received actual delivery of the check nor the substitute check, nor the cash. Defendant contends that payments to committeemen of the Democratic party are gratuities or emoluments of a discretionary nature and further that it was within his province and authority to determine whether or not the plaintiff was entitled to the check in question. The defendant contends that the negotiable instrument in question was never completely executed by all necessary parties nor was it delivered to the plaintiff. Defendant avers that the procedure of delivery of all checks by the County Committee to the Town Chairman was a conditional one in which the Town Chairman had discretion to determine whether any committeeman was entitled to receive such payment.

From the pleadings and affidavits filed herein, it is quite apparent that there are several triable issues of fact. Without intending to outline all of such issues, it appears that there is a question (1) whether the plaintiff had a property right in the $15 allowance; (2) whether the defendant had a right to cancel or countermand the check in the process of distribution to the plaintiff and others; (3) what was the source and ownership of the funds in question; (4) whether the defendant had discretionary authority to grant or disallow payment to the plaintiff; (5) whether there was a diversion of funds and whether such diversion was proper or improper.

Many interesting questions are raised in this motion but the matter cannot be properly settled without the taking of testimony and introduction of evidence at a trial of the issues.

Plaintiff’s motion is denied, without cost. Defendant’s cross motion is denied, without cost.  