Faber v. Edgewater Nat. Bank of Edgewater, N. J.

• Decision Date: 28 May 1968
• Docket Number: No. L--7314--65,L--7314--65
• Citation: 244 A.2d 339,101 N.J.Super. 354
• Parties: , 5 UCC Rep.Serv. 525 Edward FABER, Plaintiff, v. The EDGEWATER NATIONAL BANK OF EDGEWATER, N.J., a national banking association, Defendant.
• Court: New Jersey Superior Court

Page 354

101 N.J.Super. 354

244 A.2d 339, 5 UCC Rep.Serv. 525

Edward FABER, Plaintiff, v. The EDGEWATER NATIONAL BANK OF EDGEWATER, N.J., a national

banking association, Defendant.

No. L--7314--65.

Superior Court of New Jersey

Law Division.

Argued May 16, 1968.

Decided May 28, 1968.

Maurice C. Brigadier, Jersey City, for plaintiff.

Milton T. Lasher, Hackensack, for defendant.

SCHNEIDERMAN, J.C.C.

Plaintiff, Edward Faber, has moved for Summary Judgment against the defendant, The Edgewater National Bank of Edgewater, N.J., a national banking association, on the First Count of the Amended Complaint. In this Count recovery is sought for items improperly charged against the plaintiff's 'Berkeley Arms' checking account with the defendant. The pertinent facts at issue have been stipulated by both sides.

On March 8, 1963 plaintiff, Edward Faber, became the owner of a Leasehold of an apartment house designated as 'The Berkeley Arms' and located at 208 Anderson Street, in the City of Hackensack, County of Bergen, State of New Jersey.

On January 15, 1964, the plaintiff entered into a management agreement with one Martin Goldstein under which the plaintiff employed the said Martin Goldstein as his agent to lease, operate and manage the aforesaid property. By said agreement the plaintiff agreed with Martin Goldstein that the monies collected by him as agent from the rentals paid by the tenants in said premises should be deposited in a bank account in the Edgewater National Bank, the defendant herein. Said account was to be opened by the plaintiff and all withdrawals therefrom were to be by check containing two signatures, the signature of Sylvia Faber, the wife of the plaintiff, and the signature of either Martin Goldstein or his employee, Frederick Miller.

Thereupon, on February 3, 1964, the plaintiff did open an account in the Edgewater National Bank in the name of 'Berkeley Arms Apartments'. On the signature card it was set forth that in the payment of funds or the transaction of any other business on the said account the signatures required on all checks or other instruments to be charged against said account should be that of Sylvia Faber, the wife of the plaintiff, and the signature of Martin Goldstein or his employee, Frederick Miller. The contract of banking between the plaintiff, as depositor, and the defendant, as the bank repository, provided that the defendant could charge against the aforesaid account of the plaintiff only such items as were drawn against the account of the plaintiff in the name of 'Berkeley Arms Apartments' and which bore the aforementioned signatures.

Thereafter, commencing with February 3, 1964 and continuing through October 30, 1964, Martin Goldstein collected from the tenants of the plaintiff substantial sums of money and said funds were deposited by Martin Goldstein in the Berkeley Arms account. Total collections amounted to $179,909.16 for that period. However, the total deposits to the Berkeley Arms checking account made by Martin Goldstein during the same period amounted to $236,915.36. Throughout this period, February 3, 1964 through October 30, 1964, the monthly bank statements were delivered by the defendant herein to Martin Goldstein pursuant to plaintiff's instructions to the bank. Plaintiff never examined the statements over this nine month period.

Some time after November 1964, the plaintiff obtained possession of the bank statements and the items charged against the Berkeley Arms account which had been returned with said statements. Thereupon the plaintiff learned that the defendant, in breach of its banking contract with the plaintiff, had charged against the aforesaid account of the plaintiff between February 3, 1964 and October 30, 1964, items totalling $56,098.97. These items were Not drawn upon the Berkeley Arms account but were, in point of fact, drawn upon other accounts belonging to Martin Goldstein, individually, or other organizations owned, managed, or controlled by the said Martin Goldstein, with which the plaintiff had no connection whatsoever and for the payment of which no authorization had ever been given by the plaintiff to the defendant. (emphasis mine) Included among these items was a Promissory Note which was in no way chargeable against the account of the plaintiff.

On December 15, 1964, and on several occasions thereafter, plaintiff furnished the defendant with a list of items which had been wrongfully charged by the defendant against the aforesaid account of the plaintiff. The items so improperly charged, 102 in all, against the account of the plaintiff amounted to $56,098.97, none of which purports to have been drawn against plaintiff's account. The defendant has failed and refused to pay the same. They were all drawn against other accounts of Goldstein and charged to the plaintiff.

On November 12, 1965 the present suit was commenced against the defendant, The Edgewater National Bank of Edgewater, N.J., a national banking association. The whereabouts of Martin Goldstein are unknown. On the basis of the foregoing facts the plaintiff contends he is entitled to Judgment as a matter of law.

For the purposes of this motion it should be noted that the movant has the burden to exclude any reasonable doubt as to the existence of any genuine issue of material fact. R.R. 4:58--3. All inferences of doubt are drawn against the movant in favor of the opponent and the papers supporting the motion are closely scrutinized and opposing papers indulgently treated. Such relief is to be granted with much caution. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 110 A.2d 24 (1954); United Stations of N.J. et al. v. Kingsley et al., 99 N.J.Super. 574, 581, 240 A.2d 702 (Ch.Div.1968).

At the outset it should be noted that I am of the opinion that this is a case of novel impression not only in this State but throughout the entire country. The Court in its research has been unable to find any case law where a bank acted in the manner in which the facts present themselves at bar.

The main issue for consideration is whether the plaintiff is relieved from exercising due diligence in examining the bank statements and cancelled checks for the period from February 3, 1964 to October 30, 1964 based on the facts in this case.

The defendant in his Brief raises two points, (1) the plaintiff suffered no loss and therefore has no claim to relief; (2) the plaintiff owed a duty to the defendant to examine his account with reasonable dispatch and that he failed to discharge this duty. I will consider the second point first.

It should be noted at the outset that the provisions of the Uniform Commercial Code contained in N.J.S. 12A:4--406, N.J.S.A., have no application to the instant case. This section deals exclusively with the subject of the forgery or unauthorized signature of the drawer or endorser upon checks and other instruments Chargeable to the account of a depositor as well as the alteration of such instrument. (emphasis mine). As previously stated, the duties imposed by the Uniform Commercial Code as to the bank and its customer, and the time limitation with respect to suit, apply only to forgery, unauthorized signature or alteration. There is no provision in the Code dealing with the duty of the customer or the bank with respect to items charged against the customer's account that do not purport to be drawn against said account.

Furthermore, sub-section 4-406(3) makes the rules regarding due diligence inoperative if the bank, itself, has been negligent. In other words, a negligent bank cannot put the loss resulting from a forgery or the like onto the customer on the ground that the...