Alpha Aromatics, Inc. v. Frisone
Decision Date | 13 May 1966 |
Citation | 270 N.Y.S.2d 493,50 Misc.2d 341 |
Parties | ALPHA AROMATICS, INC., Plaintiff, v. Anthony FRISONE, Defendant. |
Court | New York District Court |
Joseph Jaspan, Brooklyn, for plaintiff.
Anthony Frisone, in pro. per.
DECISION AFTER TRIAL
In this action to recover against an individual for a corporate check because of the alleged fraud of the individual, after a trial without a jury, the
are as follows:
The defendant, an officer of the B.B.B. Mobile Units, Inc., executed two checks dated July 19 and 30, 1963, respectively, drawn on the corporation for merchandise delivered by the plaintiff on a C.O.D. basis. During the month of July deposits to the corporation account totaled $12,809.69, and checks totaled $13,517.50. The balance at the beginning of the month was $717.82, and at the end of the month was $89.99 overdrawn. Following the first check of $180.98 dated July 19, 1963, there were deposits of $1,219.17 and during the same period checks in the amount of $2,708.25. The second check dated July 30, 1963, was delivered on July 26 because the defendant knew there were insufficient funds on July 26.
The plaintiff relies upon Lippman Packing Corp. v. Rose, 203 Misc. 1041, 120 N.Y.S.2d 461, where an officer of a corporation, with knowledge that there were insufficient funds in the corporate account, drew a check for the purpose of inducing the sale of merchandise, was held liable for fraud. This case is distinguished. As to the first check, which was not postdated, the activities of the corporate account preclude a finding of fraud by the individual defendant.
As to the second check, which was postdated, the language of People v. Mazeloff, 229 App.Div. 451, 452, 242 N.Y.S. 623, 625, applies: 'Fraud cannot be predicated upon nonperformance of a future promise, and a postdated check is a mere promise to discharge a present obligation at a future date.'
The language of Azzarello v. Richards, 198 Misc. 723, 724, 99 N.Y.S.2d 597, 599, is also pertinent: ...
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People v. Gerber
...otherwise the check would not be postdated." Azzarello v. Richards, supra, at 724, 99 N.Y.S.2d 597. In Alpha Aromatics, Inc. v. Anthony Frisone, 50 Misc.2d 341, 270 N.Y.S.2d 493 (1966), a check dated July 30, 1963 was delivered on July 26, 1963. The instrument gave sufficient notice of post......
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Pristine Jewelers NY, Inc. v. Broner
...would be paid. However, "the act of giving a postdated check is not in itself evidence of fraud." Alpha Aromatics, Inc. v. Frisone , 50 Misc.2d 341, 270 N.Y.S.2d 493, 494 (N.Y. Dist. Ct. 1966) (quoting Azzarello v. Richards , 198 Misc. 723, 99 N.Y.S.2d 597, 599 (N.Y. Mun. Ct. 1950) ). "Frau......
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Virgilio Flores, SA v. Jerome Radelman, Inc., CV-81-3044.
...Merrill Lynch, Pierce, Fenner & Smith Incorporated, 461 F.Supp. 1159 (S.D.N.Y.1978). The defendants cite to Alpha Aromatics, Inc. v. Frisone, 50 Misc.2d 341, 270 N.Y.S.2d 493 (1966) for the proposition that the act of postdating a check gives rise to the presumption that there are not suffi......