13 A.D.2d 756 | N.Y. App. Div. | 1961
Order entered on December 15, 1960, modifying order of the City Court of the City of New York and granting defendants’ motion for summary judgment, unanimously reversed, on the law, and on the facts, with costs in this court and in the Appellate Term, and defendants’ motion for summary judgment denied. There was no appeal by plaintiff from the order of the City Court denying his motion for summary judgment, and we do not determine, whether or not, on the facts presented, he should have been granted summary judgment by the City Court. (See New York Cent. R. R. Co. v. Beacon Milling Co., 293 N. Y. 218.) This determination is without prejudice to renewal of his motion. The note of the defendants Jack Dick and his wife Lynda Dick was given to plaintiff to secure him for a sum equal to the amount advanced by him in connection with the purchase and holding of certain shares of stock for the joint account of the plaintiff and the defendant Jack Dick. Given as it was to secure an advance of money, to be returned to plaintiff in any event, and being by its terms payable on demand, the note would appear to be presently enforeible. The sale of the stock held in the joint account with the establishment of a loss, or the settlement of accounts between the parties as alleged joint venturers, does not appear to have been agreed upon as a condition precedent to the enforcement of the note. In any event, the general rule is that where a note or other chose in action is given as collateral security, the holder has the privilege of enforcing the same when due according to its terms, whether or not the principal debtor’s obligation has yet matured. “ The fact that the debt for which the instrument is pledged is not due does not prevent the pledgee from
