237 A.D. 614 | N.Y. App. Div. | 1933
This action is brought by plaintiff, as assignee and successor in interest of the Community State Bank, to recover an alleged balance claimed to be due on a promissory note in writing made and delivered by defendant to the said Community State Bank on May 14, 1929. By the terms of said promissory note the defendant promised to pay to the order of the Community State Bank on demand the sum of $8,887.50. Plaintiff claims to be the assignee of said note under several mergers and mesne assignments, but makes no claim to be a holder of said promissory note in due course. The promissory note on which plaintiff sues is not set forth in hcec verba, the plaintiff contenting itself with alleging the legal effect thereof. Plaintiff seeks to recover the unpaid balance of said note, amounting to $3,377.36, besides interest. The answer, aside from denials, sets up three separate and distinct defenses and a counterclaim upon which the defendant demands judgment
In the first partial defense contained in the answer of the defendant, the defendant alleges that on or about May 14, 1929, the defendant, through the said Community State Bank, purchased fifty shares of the common stock of the du Pont de Nemours Company. The note in suit was originally given in payment for the stock thus purchased by defendant through said Community State Bank. It is alleged in the said first defense that prior to the purchase of said stock the defendant and Community State Bank entered into an agreement wherein and whereby the said bank agreed to and did loan to defendant the sum of $8,887.50 which was the amount of the purchase price of said stock, and which sum was, to the knowledge of the Community State Bank, used by it for and on behalf of the defendant to pay the purchase price of said fifty shares of stock, and that by said agreement the said Community State Bank further agreed to forthwith place with a member of the New York Stock Exchange a stop-loss order to sell said stock whenever the same reached twenty dollars a share below the purchase price, and further agreed to apply the proceeds of the sale of such stock toward the repayment to itself of the moneys which might then be due on said loan, the defendant agreeing to pay any deficiency which might arise, and therein and thereby the Community State Bank further agreed to sell said stock at any time on demand or order of defendant. It is further alleged that the said Community State Bank could readily have sold the said fifty shares of stock at a price twenty dollars per share below the purchase price of said stock, as agreed upon, and that in violation of the terms and conditions of said agreement it failed, neglected and refused so to do. It is further alleged that the price or value of said stock on the New York Stock Exchange did fall twenty dollars per share below the purchase price, at which time, under the aforesaid agreement and stop-loss order, the said stock was to be sold. Defendant alleges that had the Community State Bank carried out its agreement and sold said stock, it could have sold said stock and received from the proceeds of such sale sufficient money to repay itself, less the sum of $1,000. The order of the court at Special Term striking out the first defense contained in the answer of defendant, as indicated in the memorandum opinion contained in the order / appealed from, seems to have been based upon the assumption that there was no express agreement obligating the Community State Bank, as pledgee, to sell the collateral in question. In our opinion, the court was in error in assuming that there was no special agree
" In the second and third separate defenses contained in the answer the defendant alleges an accord and satisfaction of the plaintiff’s claim. In the second separate defense the defendant alleges that prior to the commencement of the present action and prior to the plaintiff acquiring title to the claim upon which suit is brought, and when the Community State Bank was still the owner and holder of the claim alleged in the complaint, the plaintiff’s assignor demanded payment of the note in question, and that the defendant disputed and refused to pay said claim upon the ground that he was not indebted thereon to plaintiff’s assignor by reason of the failure and refusal of the Community State Bank to comply with
As a third separate defense the defendant alleges that prior to the commencement of the present action and prior to the time that plaintiff acquired title to the claim alleged in the complaint and at the time the Community State Bank was still the owner and holder of the claim alleged in the complaint, and pursuant to an agreement of settlement made between them, the defendant gave to the Community State Bank, and the Community State Bank accepted and received from defendant, $1,000, by the delivery to the Community State Bank of the ten shares of the common stock of the
The facts stated in the three separate defenses are then alleged, by way of counterclaim against the cause of action set forth in the complaint, the defendant alleging that by reason of the premises the defendant was entitled to have said note canceled and delivered to him, and that there became due and owing from the Community State Bank and from the plaintiff, its assignee, to the defendant the sum of $1,000, for which defendant demands judgment against plaintiff.
The respondent contends that the facts alleged do not set forth an accord and satisfaction because of the fact that the accord and satisfaction was not based upon any consideration, and that in effect the allegations were of an agreement on the part of the bank to release the defendant from a liquidated debt upon payment of a part thereof; that the defendant, obligated to pay the entire indebtedness, is not to be released from paying the balance by part payment. It seems to us that the court erred in so construing the allegations of the second and third separate defenses contained in the answer. The defendant therein not only alleges the deposit of additional security by way of the ten shares of the Liberty National Bank stock, which the defendant was not bound to deposit and which the Community State Bank could not require the defendant to deposit, but it is also alleged that the defendant was making a claim in good faith that the Community State Bank should respond to the defendant in damages for failure to keep its agreement to sell the stock which it had purchased for defendant at the
Having reached a conclusion that the three defenses were good, it follows that the counterclaim set forth in the answer likewise states facts sufficient to constitute a counterclaim.
The order appealed from should in all respects be • reversed, with twenty dollars costs and disbursements, and plaintiff’s motion denied, with ten dollars costs, with leave to plaintiff to reply within ten days on payment of said costs.
Finch, P. J., O’Malley, Sherman and Townley, JJ., concur.
Order reversed, with twenty dollars costs and disbursements, and motion denied, with ten dollars costs, with leave to the plaintiff to reply within ten days upon payment of said costs.