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Barry''s Town and Suburban Inc. v. Cohen

Decided: November 14, 1989.

BARRY'S TOWN AND SUBURBAN, INC., PLAINTIFF-RESPONDENT,
v.
RONALD L. COHEN, BENJAMIN COHEN AND COHEN AND COHEN, CERTIFIED PUBLIC ACCOUNTANTS, DEFENDANTS, AND MELVYN I. COHEN, DEFENDANT-APPELLANT



On appeal from the Superior Court, Law Division, Essex County.

Gaulkin, Dreier and Scalera. The opinion of the court was delivered by Gaulkin, P.J.A.D.

Gaulkin

[236 NJSuper Page 399] Defendant Melvyn I. Cohen appeals by leave granted (R. 2:2-4) from an order continuing a previously-issued writ of attachment against his assets and a subsequent order denying his motion to modify that order.

I.

The writ was initially authorized by order to show cause entered upon the filing of the verified complaint. The complaint, in eight counts, sought a variety of relief arising out of defendants' alleged "illegal and unlawful acts which defrauded the plaintiff." Its essential factual allegations were these:

4. The defendants Ronald L. Cohen, Melvyn I. Cohen and Benjamin Cohen are certified public accountants licensed to practice their profession in the State of New Jersey. Since at least 1978 until October 1986 the plaintiff employed Ronald L. Cohen, Melvyn I. Cohen and Benjamin Cohen, doing business as Cohen & Cohen as its certified public accountant. In or about October 1986 Ronald L. Cohen went into practice for himself and continued as plaintiff's accountant. . . .

5. In their capacity as the plaintiff's accountant the defendants were responsible for maintaining custody of plaintiff's checkbook and preparing all checks for the signature of the authorized signators of plaintiff and reconciling plaintiff's bank statement.

8. On or about July 6, 1978 the defendants began a systematic scheme to unlawfully defraud plaintiff for defendants' own benefit. The plaintiff had agreed to compensate the defendants for the accounting services they rendered by paying them a certain sum each month. For the period July 1978 through December 1983 it was $450.00 per month, for the period January 1984 through December 1984 it was $475.00 per month. For the period January 1985 through June 1985 it was $500.00 per month and for the period July 1985 to date it was $550.00 per month.

9. For the period July 1978 to October 1986 the defendants, any or all of them would draw a check on the plaintiff's account made payable to Cohen & Cohen in the proper amount of the agreed monthly remuneration. The defendants, any or all of them, would fill in the Arabic numbers of the amount of the check but leave the line where the numbers were to be written blank and explain to Alvin Simon, the President of the plaintiff corporation that the check was being made out in this manner so that it could be taken back to the defendants' own office where defendants would emboss the amount of the check on the line that was to bear the handwritten figures with defendants' embossing machine. The plaintiff through its representative accepted this explanation and then signed the checks made payable to the defendant Cohen & Cohen with the proper Arabic numerals setting forth their monthly remuneration but the handwritten line left blank. For the period October 1986 to date the defendant Ronald L. Cohen followed the same procedure and made the check out to himself.

10. The defendants purposely left enough room where the Arabic numerals were so as to insert additional numerals to increase the amount of the check from the authorized amount.

11. The defendants would then write in the unauthorized amount of the check in handwritten words and deposit the check to their account.

16. . . . [P]laintiffs have already ascertained for the period July 1978 through December 1989 that over $784,000.00 in checks were improperly altered, cashed and deposited in this manner. For the period July 1978 through September 1986 when Ronald L. Cohen, Melvyn I. Cohen and Benjamin Cohen d/b/a Cohen & Cohen were plaintiff's ...


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