8 Misc. 2d 362 | N.Y. Sup. Ct. | 1957
In an action to recover the sum of $1,161.01 on two checks issued by the defendant Paramount Factors, Inc., to the defendant G. & G. Lamp & Table Corp., plaintiff seeks leave to renew a motion for summary judgment striking out the answer of the defendant Paramount Factors, Inc., upon the ground that there is no defense to this action.
Heretofore, plaintiff’s motion for similar relief was denied. The only supporting proof were two affidavits by plaintiff’s attorney and photostatic copies of the checks. The court held that these affidavits were insufficient to establish that the plaintiff in fact paid value for the checks prior to the time that it was notified that Paramount Factors, Inc., had issued a stop payment order to the bank on which the checks were drawn. Upon this motion, plaintiff has submitted the affidavit of its assistant vice-president and manager of the branch where the transaction occurred, who is fully familiar with the facts and surrounding circumstances thereof. This affidavit is supported by a photostatic copy of the statement of account of the defend
Assuming that these checks were deposited for collection, it cannot be controverted that plaintiff paid value prior to receiving notice of the stop payment. Bath Nat. Bank v. Ely N. Sonnenstrahl, Inc. (249 N. Y. 391) was an action by a bank to recover the proceeds of certain, produce sold by the defendant, claimed to have been owned by the plaintiff under bills of lading delivered to it by a shipper with drafts to its order. The court held that it was error for the Trial Judge to refuse to charge that if the bank, though merely an agent for collection, advanced the amount of the drafts to its customer before the collection was made, then it became a holder for value of such drafts and the accompanying bills of lading.
Similarly in Freeport Bank v. Viemeister (227 App. Div. 457), the bank brought an action on a check for $1,000 made by the defendant to its depositor. The check was delivered by the defendant on January 7, 1927 upon condition and payment was stopped two days later on the ground that the condition had not been fulfilled. Prior to the time when the plaintiff received notice that payment on defendant’s check had been stopped, it certified a check for its depositor for $1,525. At that time, its
The foregoing applies to the facts at bar. Accordingly, there is no defense to this action and the plaintiff is entitled to judgment against the drawer of the checks. The motion is, therefore, granted.
Submit order.