46 A.D.2d 622 | N.Y. App. Div. | 1974
Order, Supreme Court, New York County, entered on April 3, 1974, granting plaintiff’s motion for summary judgment in lieu of complaint (CPLR 3213) and denying defendant’s cross motion for similar relief, reversed, on the law, without costs and without disbursements, plaintiff’s motion denied and summary judgment awarded to defendant dismissing the action. Plaintiff failed to comply with the clear and unambiguous terms of the letter of credit upon which it bases this suit against defendant bank. Said letter of credit required that plaintiff, when seeking funds thereunder, presented to defendant its sight draft, a written statement indicating nonpayment and “the relative unpaid invoice signed by Jamaica Refrigeration Service Corporation [the purchaser of goods from plaintiff].” (Emphasis supplied.) Plaintiff never presented signed invoices to defendant and Jamaica never waived such requirement. Under these circumstances, defendant “was wholly within its rights in refusing the draft ” (Banco Nacional Ultramarino v. First Nat. Banh of Boston, 289 Fed. 169, 175). It is well settled that “ letters of credit are to be strictly complied with, which means that the papers, documents and shipping descriptions must be followed as stated in the letter. There is no discretion in the bank * * * to waive any of these requirements. The terms of the letter constitute an agreement between the purchaser and the bank”. (Anglo-South Amer. Trust Co. v. Uhe, 261 N. Y. 150, 156-157.) Concur — McGivern, P. J., Murphy, Tilzer and Capozzoli, JJ.; Nunez, J., dissents in the following memorandum : Reason, justice and equity require that plaintiff should prevail. Defendant’s refusal to honor its commitment under its letter of credit is wholly unjustified. Justice Chimera carefully and ably analyzed the facts and the applicable law and, in my opinion, reached the correct conclusion. It is unconscionable to deprive plaintiff of payment for merchahdise concededly sold and delivered.
