(Download) "Ludwig Rosenthal v. Manufacturers Hanover Trust Company" by Supreme Court of New York " Book PDF Kindle ePub Free
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- Title: Ludwig Rosenthal v. Manufacturers Hanover Trust Company
- Author : Supreme Court of New York
- Release Date : January 11, 1968
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 71 KB
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The first affirmative defense is insufficient, particularly in that it is therein alleged that the authority of Pincus to
indorse checks payable to his corporate employer is limited to "the purpose of depositing the checks in plaintiff's bank account."
(See Wagner Trading Co. v. Battery Park Nat. Bank, 228 N. Y. 37; Porges v. United States Mtge. & Trust Co., 203 N. Y.
181, 190; Wen Kroy Realty Co. v. Public Nat. Bank & Trust Co., 260 N. Y. 84; Ward v. City Trust Co., 192 N. Y. 61; 5
N. Y. Jur., Banks & Trust Companies, 435; see, also, Uniform Commercial Code, 3-304; Banking Law, 9.) The second
and third affirmative defenses allege negligence on the part of plaintiff in failing to supervise the activities of Pincus
and in permitting the particular occurrences, including the alleged unauthorized endorsement of the checks payable to the
plaintiff. Such defenses, grounded in negligence, are insufficient as defenses to this action brought on the theory of conversion.
(See People v. Bank of North America, 75 N. Y. 547, 561; People's Trust Co. v. Smith, 215 N. Y. 488; Bunge Corp. v. Manufacturers
Hanover Trust Co., 28 A.D.2d 842.) Although the plaintiff presents proof prima facie establishing its alleged cause of action,
it appears that there may exist undisclosed essential facts bearing upon the merit thereof. For this reason, and in view of
the incompleteness of the present record (only one of the subject checks with endorsements is before the court), we conclude
that plaintiff's motion for summary judgment should be denied in the interests of justice. In the circumstances of the case,
the defendant should be afforded the opportunity of disclosure proceedings before renewal of the motion for summary judgment.
(See CPLR 3212, subd. [f]). Disposition Order, entered January 16, 1968, unanimously modified, on the law, to strike defendant's three affirmative defenses
for insufficiency on the face thereof, without prejudice to application by defendant at Special Term for leave to amend his
answer to interpose any proper affirmative defense upon proof of prima facie factual support for the merit thereof (see CPLR
3211, subd. [e]), and order otherwise affirmed, with $50 costs and disbursements to abide the event, without prejudice to
renewal by plaintiff of motion for summary judgment following completion of disclosure proceedings.