Kofsky v. Public National Bank & Trust Co.

278 A.D. 660 | N.Y. App. Div. | 1951

Action by owners of insurance policies given as collateral to secure a loan, to recover them from the lender, in which the latter has counterclaimed for judgment against one of the plaintiffs as comaker for the unpaid amount of the note, and for judgment permitting it to apply the collateral in satisfaction of the indebtedness. Judgment for defendant bank unanimously affirmed, with costs to the Public National Bank and Trust Company of New York. Appeal, by way of review, from an order dismissing the complaint for insufficiency as against defendant Equitable Life Assurance Society of the United States dismissed, with $10 costs and disbursements to said defendant. The defendant bank had fulfilled its obligation towards the plaintiffs when it applied for the insurance from the insurer. On the refusal of the insurer to pay the claim the bank was entitled to recourse as against the collateral or any other available means to procure a satisfaction. There was no representation by the bank which relegated it, as a sole remedy, to the insurance payment if any, in satisfaction of the debt. Furthermore the proof warranted only the conclusion that the maker was not actively at work in a gainful occupation. Even if it be assumed there was an issue of fact, the court decided it upon adequate proof, adversely to the plaintiffs. The order dismissing the complaint as to the insurance company was a final order and also was not one which necessarily affected the judgment appealed from. Present —Nolan, P. J., Carswell, Adel, Sneed and MacCrate, JJ.