622 West 113th St. Corp. v. Chemical Bank New York Trust Co.

CourtNew York City Court
Writing for the CourtEDWARD J. GREENFIELD
Citation52 Misc.2d 444,276 N.Y.S.2d 85
Parties, 3 UCC Rep.Serv. 1148 622 WEST 113TH STREET CORP., Plaintiff, v. CHEMICAL BANK NEW YORK TRUST CO., Defendant and Third-Party Plaintiff, v. DEPARTMENT OF WELFARE OF the CITY OF NEW YORK, Third-Party Defendant.
Decision Date27 December 1966

Page 85

276 N.Y.S.2d 85
52 Misc.2d 444, 3 UCC Rep.Serv. 1148
622 WEST 113TH STREET CORP., Plaintiff,
v.
CHEMICAL BANK NEW YORK TRUST CO., Defendant and Third-Party Plaintiff,
v.
DEPARTMENT OF WELFARE OF the CITY OF NEW YORK, Third-Party Defendant.
Civil Court of the City of New York, Trial Term, New York County.
Dec. 27, 1966.

Page 87

Garfield, Gelman & Garfield, New York City, by Milton Gelman, New York City, for plaintiff.

John B. Wynne, by Robert J. Seymour, New York City, for defendant and third-party plaintiff.

Leo A. Larkin, New York City, for third-party defendant by Philip Sokol, New York City.

EDWARD J. GREENFIELD, Judge.

Plaintiff's complaint alleges that the defendant bank, in which it maintained an account, deducted sums from its account 'without authorization or justification.' * On the trial plaintiff proved it was a depositor, had deposited a New York City Department of Welfare check endorsed by a person who satisfactorily identified heself as the payee, and was notified six months later that the Department of Welfare claimed the endorsement was a forgery, and that the bank accordingly was debiting the account.

The defendant bank in its answer pleaded a general denial and an affirmative defense of forgery, and interposed a third-party complaint impleading the Department of Welfare. On the trial, the bank proved that six months after it had credited plaintiff for the amount of the check, it was notified by its correspondent bank that the Department of Welfare claimed the [52 Misc.2d 445] endorsement had been forged, forwarded a copy of an affidavit to that effect, and that as a result the bank repaid the drawee bank and the amount of the check was deducted from plaintiff's account.

On this state of the record, defendant bank claimed plaintiff had failed to prove the genuineness of the check, withdrew its affirmative defense of forgery, and urged that under its general denial it was entitled to judgment, plaintiff having failed to sustain its burden of proving the absence

Page 88

of any forgery. Plaintiff, on the other hand, pointing out that the defendant bank had failed to adduce any first-hand probative proof that the claimed forgery had taken place, insisted that defendant had failed to sustain its burden of proving the presence of a forgery, and that it was entitled to judgment.

The question is not to be resolved by abstract discussion as to the relative burdens of proving the affirmative or the negative of an asserted state of facts, nor by the artful or fortuitous state of the pleadings. The specific question posed would ordinarily be controlled by the provisions of the Uniform Commercial Code. Section 3--307 requires a specific denial of the genuineness of a signature on an instrument. Withdrawal by the bank of the affirmative defense of a forged endorsement leaves it with only a general denial. The sufficiency of the general denial would appear dubious, but in this case plaintiff is not suing on a specific instrument, but on its overall depositor-creditor relationship. It is the defendant who contested the validity of a specific instrument, and raised an issue of the effectiveness of an endorsement in its now withdrawn affirmative defense. The issue was raised and put in focus on the trial, however, and Sec. 3--307(1)(a) then places the burden of establishing the signature upon the party claiming under it. But subdivision (b) gives such party a presumption of genuineness, placing on the other party the burden of going forward to show a defense. See Official Comment, McKinney's Consolidated Laws of New York, Vol. 62 1/2, pp. 210--211.

The bank itself never established that the endorsement was a forgery--merely that it had received notice to that effect. Such proof may be sufficient in certain circumstances. Under Sec. 4--201 of the Uniform Commercial Code, prior to final settlement, the collecting bank is merely the agent for collection of the check deposited by the...

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22 practice notes
  • Lund v. Chemical Bank, No. 84 Civ. 1621 (RWS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • July 6, 1987
    ...Chase Manhattan Bank, 106 A.D.2d 491, 483 N.Y.S.2d 30 (2d Dep't 1984); 622 West 113th Street Corp. v. Chemical Bank New York Trust Co., 52 Misc.2d 444, 276 N.Y.S.2d 85 (1966). Nevertheless, since Chemical did not formally move for summary judgment on its claim over against Laidlaw, and Laid......
  • White v. Hancock Bank, No. 55045
    • United States
    • United States State Supreme Court of Mississippi
    • September 25, 1985
    ...of right made a $250,000.00 chargeback against White's savings account. 622 West 113th St. Corp. v. Chemical Bank New York Trust Co., 52 Misc.2d 444, 276 N.Y.S.2d 85 (1966). In this context it seems anomalous that White is suing the Notwithstanding that his case is seen sinking fast once th......
  • T.R. America Chemicals, Inc. v. Seaboard Sur. Co.
    • United States
    • United States State Supreme Court (New York)
    • July 14, 1982
    ...has been held to be afforded the rights of a party adverse to all other parties in the action ( 622 W. 113th St. Corp. v. Chemical Bank, 52 Misc.2d 444, 447, 276 N.Y.S.2d 85; Mansfield Iron Works v. Silveri, 106 N.Y.S.2d 496; Jacobs v. Driscoll, 78 N.Y.S.2d 813; CPLR Of necessity, among the......
  • Bank of Commerce v. De Santis
    • United States
    • New York City Court
    • June 15, 1982
    ...for the item it may charge back the customer's account". 622 West 113th Street Corp., v. Chemical Bank New York Trust Co., (1966) 52 Misc.2d 444, 276 N.Y.S.2d 85, 3 UCCRS 1148. "Where payee endorsed and deposited check in his account with bank, bank credited payee's account and fo......
  • Request a trial to view additional results
22 cases
  • Lund v. Chemical Bank, No. 84 Civ. 1621 (RWS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • July 6, 1987
    ...Chase Manhattan Bank, 106 A.D.2d 491, 483 N.Y.S.2d 30 (2d Dep't 1984); 622 West 113th Street Corp. v. Chemical Bank New York Trust Co., 52 Misc.2d 444, 276 N.Y.S.2d 85 (1966). Nevertheless, since Chemical did not formally move for summary judgment on its claim over against Laidlaw, and Laid......
  • White v. Hancock Bank, No. 55045
    • United States
    • United States State Supreme Court of Mississippi
    • September 25, 1985
    ...of right made a $250,000.00 chargeback against White's savings account. 622 West 113th St. Corp. v. Chemical Bank New York Trust Co., 52 Misc.2d 444, 276 N.Y.S.2d 85 (1966). In this context it seems anomalous that White is suing the Notwithstanding that his case is seen sinking fast once th......
  • T.R. America Chemicals, Inc. v. Seaboard Sur. Co.
    • United States
    • United States State Supreme Court (New York)
    • July 14, 1982
    ...has been held to be afforded the rights of a party adverse to all other parties in the action ( 622 W. 113th St. Corp. v. Chemical Bank, 52 Misc.2d 444, 447, 276 N.Y.S.2d 85; Mansfield Iron Works v. Silveri, 106 N.Y.S.2d 496; Jacobs v. Driscoll, 78 N.Y.S.2d 813; CPLR Of necessity, among the......
  • Bank of Commerce v. De Santis
    • United States
    • New York City Court
    • June 15, 1982
    ...for the item it may charge back the customer's account". 622 West 113th Street Corp., v. Chemical Bank New York Trust Co., (1966) 52 Misc.2d 444, 276 N.Y.S.2d 85, 3 UCCRS 1148. "Where payee endorsed and deposited check in his account with bank, bank credited payee's account and fo......
  • Request a trial to view additional results

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