Brill v. Chase Manhattan Bank

• Decision Date: 14 November 1961
• Parties: Sidney BRILL, Plaintiff-Respondent, v. CHASE MANHATTAN BANK, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 903

220 N.Y.S.2d 903

14 A.D.2d 852

Sidney BRILL, Plaintiff-Respondent, v. CHASE MANHATTAN BANK, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Nov. 14, 1961.

S. R. Ballin, New York City, for defendant-appellant.

J. E. Finegan, Jr., New York City, for plaintiff-respondent.

Before BOTEIN, P. J., and BREITEL, RABIN, VALENTE and STEUER, JJ.

PER CURIAM.

Order, entered on July 3, 1961, insofar as it granted summary judgment in favor of the plaintiff, modified on the law to the extent of denying summary judgment, without costs, and the judgment entered pursuant to said order on July 7, 1961 is vacated. There are triable issues presented which should be determined by trial and not by affidavits. At the least, an issue is posed as to the illegality of the transaction as being in contravention of the exchange regulations of Cuba, and thus in violation of the Articles of Agreement of the International Monetary Fund (Bretton Woods Agreements Act, 22 U.S.C.A. § 286). Moreover, it cannot be concluded from the papers--as Special Term did--that the check was not payable in Cuban currency alone, but in dollars as well. Nor is there any factual basis for the assumption by Special Term that the peso and dollar were on a parity basis. If the check was payable in pesos only, then plaintiff would only entitled to recover a sum in dollars equivalent to the rate of exchange of pesos prevailing at the date of the breach of contract. (Hoppe v. Russo-Asiatic Bank, 235 N.Y. 37, 138 N.E. 497.) The record is barren of any averments as to the exchange value of the Cuban peso at the appropriate date. While it is not intended to limit the triable issues to the afore-mentioned ones, their presence in this case alone required the denial of plaintiff's motion for summary judgment.

All concur except BOTEIN, P. J., and STEUER, J., who dissent in part in the following memorandum:

BOTEIN, Presiding Justice, and STEUER, Justice (dissenting in part).

We concur with the result reached by the majority in so far as it finds the granting of summary judgment to the plaintiff to be improper, but we go further and maintain that judgment should have been granted to the defendant. In so doing we do not reach the question of whether the check was payable in pesos or in dollars. Assuming that it was payable, as plaintiff maintains, in dollars, it is clearly an exchange contract. The check was issued in return for a deposit with the defendant bank in Cuba of...