Billings v. East River Sav. Bank

CourtNew York Supreme Court Appellate Division
Writing for the CourtPER CURIAM
Citation33 A.D.2d 997,307 N.Y.S.2d 606
Parties, 7 UCC Rep.Serv. 237 Bessie BILLINGS, Administratrix C.T.A. of the Estate of Lillis Cooper, Deceased, Plaintiff, v. EAST RIVER SAVINGS BANK, Defendant and Third-Party Plaintiff-Respondent, v. Martin P. CLAYTON and The Chase Manhattan Bank, Third-Party Defendants, and Morgan Guaranty Trust Company of New York, Third-Party Defendant-Appellant.
Decision Date02 February 1970

Page 606

307 N.Y.S.2d 606
33 A.D.2d 997, 7 UCC Rep.Serv. 237
Bessie BILLINGS, Administratrix C.T.A. of the Estate of
Lillis Cooper, Deceased, Plaintiff,
v.
EAST RIVER SAVINGS BANK, Defendant and Third-Party
Plaintiff-Respondent,
v.
Martin P. CLAYTON and The Chase Manhattan Bank, Third-Party
Defendants, and Morgan Guaranty Trust Company of
New York, Third-Party Defendant-Appellant.
Supreme Court, Appellate Division, First Department.
Feb. 2, 1970.

Page 607

A. Brass, New York City, for defendant and third-party plaintiff-respondent.

J. Murray, New York City, for third-party defendant-appellant.

Before STEVENS, P.J., and EAGER, MARKEWICH, NUNEZ and TILZER, JJ.

PER CURIAM.

Order entered September 13, 1968, denying third-party defendant-appellant's motion to dismiss the third-party complaint, unanimously reversed, on the law, with $50 costs and disbursements to the third-party defendant-appellant, and the motion granted, the action severed and the third-party complaint dismissed as to Morgan Guaranty Trust Company of New York. The depositor, the third-party plaintiff-respondent, having failed to give notice of the forged endorsements within three years from the date a statement of account accompanied by the checks was received from its bank, the third-party defendant-appellant, its claim against appellant is barred by both Section 43 Negotiable Instruments Law and Section 4--406(4) Uniform Commercial Code. These are not limitation statutes fixing the time within which action must be brought. They create a rule of substantive law, a statutory prerequisite of notice. A statute of limitations may be tolled; the bar of a condition precedent to liability may not be lifted. (Shattuck v. Guardian Trust Co., 204 N.Y. 200, 209, 97 N.E. 517, 520 (1912); Bloch v. Schwartz, 266 App.Div. 188, 190, 41 N.Y.S.2d 837, 838--839 (1943); Cohen v. Manufacturers Trust Co., 144 N.Y.S.2d 366, 370, Sup.Ct.N.Y.Co.1955, Stevens, J.; Commander-Larabee M. Co. v. Manufacturers & T. Tr. Co., 61 F.Supp. 341 (W.D.N.Y.); Wm. M. Barrett, Inc. v. First Nat. Bank of Shreveport, 191 La. 945, 186 So. 741.)

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8 practice notes
  • Brighton, Inc. v. Colonial First Nat. Bank
    • United States
    • New Jersey Superior Court – Appellate Division
    • 15 October 1980
    ...of substantive law absolutely barring liabilities when its condition is not met. Billings v. East River Sav. Bank, 33 App.Div.2d 997, 307 N.Y.S.2d 606, 7 U.C.C.Rep. 237 (App.Div.1970); Dollar Federal S & L Ass'n of Malverne v. Franklin Nat'l Bank, 18 U.C.C.Rep. 757 (N. Y. Sup. Ct. 1976)......
  • Pine Bluff Nat. Bank v. Kesterson, No. 74--231
    • United States
    • Supreme Court of Arkansas
    • 17 March 1975
    ...an absolute bar because it is a rule of substantive law which is a condition precedent to an action. Billings v. East River Savings Bank, 33 A.D.2d 997, 307 N.Y.S.2d 606 (1970); [257 Ark. 823] Stauffer v. Oakwood Deposit Bank, 19 Ohio App.2d 68, 249 N.E.2d 848 (1969). See also Gennone v. Pe......
  • Provident Sav. Bank v. United Jersey Bank
    • United States
    • Superior Court of New Jersey
    • 3 July 1985
    ...Co. Inc., v. New Jersey Bank & Trust Co., 97 N.J.Super. 48 [234 A.2d 247] (App.Div.1967); Billings v. East River Savings Bank, 33 A.D.2d 997, 307 N.Y.S.2d 606 (App.Div.1970), or by agreement between the bank and its customer. See [504 A.2d 138] New York Credit Men's Adjustment Bureau, I......
  • Knight Communications, Inc. v. Boatmen's Nat. Bank of St. Louis, No. 57768
    • United States
    • Court of Appeal of Missouri (US)
    • 8 January 1991
    ...may not be tolled. Pine Bluff Nat'l Bank v. Kesterson, 257 Ark. 813, 520 S.W.2d 253, 259 (1975); Billings v. East River Savings Bank, 33 A.D.2d 997, 307 N.Y.S.2d 606, 607 Statements and cancelled checks were mailed by the bank to the address of Knight Communications every month. The fact th......
  • Request a trial to view additional results
8 cases
  • Brighton, Inc. v. Colonial First Nat. Bank
    • United States
    • New Jersey Superior Court – Appellate Division
    • 15 October 1980
    ...of substantive law absolutely barring liabilities when its condition is not met. Billings v. East River Sav. Bank, 33 App.Div.2d 997, 307 N.Y.S.2d 606, 7 U.C.C.Rep. 237 (App.Div.1970); Dollar Federal S & L Ass'n of Malverne v. Franklin Nat'l Bank, 18 U.C.C.Rep. 757 (N. Y. Sup. Ct. 1976)......
  • Pine Bluff Nat. Bank v. Kesterson, No. 74--231
    • United States
    • Supreme Court of Arkansas
    • 17 March 1975
    ...an absolute bar because it is a rule of substantive law which is a condition precedent to an action. Billings v. East River Savings Bank, 33 A.D.2d 997, 307 N.Y.S.2d 606 (1970); [257 Ark. 823] Stauffer v. Oakwood Deposit Bank, 19 Ohio App.2d 68, 249 N.E.2d 848 (1969). See also Gennone v. Pe......
  • Provident Sav. Bank v. United Jersey Bank
    • United States
    • Superior Court of New Jersey
    • 3 July 1985
    ...Co. Inc., v. New Jersey Bank & Trust Co., 97 N.J.Super. 48 [234 A.2d 247] (App.Div.1967); Billings v. East River Savings Bank, 33 A.D.2d 997, 307 N.Y.S.2d 606 (App.Div.1970), or by agreement between the bank and its customer. See [504 A.2d 138] New York Credit Men's Adjustment Bureau, I......
  • Knight Communications, Inc. v. Boatmen's Nat. Bank of St. Louis, No. 57768
    • United States
    • Court of Appeal of Missouri (US)
    • 8 January 1991
    ...may not be tolled. Pine Bluff Nat'l Bank v. Kesterson, 257 Ark. 813, 520 S.W.2d 253, 259 (1975); Billings v. East River Savings Bank, 33 A.D.2d 997, 307 N.Y.S.2d 606, 607 Statements and cancelled checks were mailed by the bank to the address of Knight Communications every month. The fact th......
  • Request a trial to view additional results

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