Federal Deposit Ins. Corp. v. Motorlease, Inc.

• Decision Date: 16 December 1967
• Citation: 56 Misc.2d 306,288 N.Y.S.2d 356
• Court: New York Supreme Court
• Parties: FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver of Crown Savings Bank of Newport News, Plaintiff, v. MOTORLEASE, INC., Earl Anderson and Andrew Goldberg, Defendants.

Page 356

288 N.Y.S.2d 356

56 Misc.2d 306

FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver of Crown Savings Bank of Newport News, Plaintiff, v. MOTORLEASE, INC., Earl Anderson and Andrew Goldberg, Defendants.

Supreme Court, Special Term, New York County, Part I.

Dec. 16, 1967.

Goldstein, Judd & Gurfein, New York City, for plaintiff; Earle K. Moore, Joseph Rubin, New York city, of counsel.

Olwine, Connelly, Chase, O'Donnell & Weyher, New York City, for defendant Anderson; James E. Tolan, New York City, of counsel.

HARRY B. FRANK, Justice:

This is a motion by plaintiff for summary judgment, in lieu of a complaint, against defendant Anderson to recover the sum of $10,303.51 pursuant to a promissory note plus attorneys' fees.

On September 4, 1964, plaintiff, Federal Deposit Insurance Corporation (hereinafter FDIC), was appointed Receiver of Crown Savings Bank of Newport News (hereinafter Bank) whose deposits it had insured. Among the assets of the Bank is a promissory note dated July 15, 1963 in the principal sum of $25,000, payable to the Bank, made by Motorlease Inc., and endorsed personally by defendant Anderson. Anderson admits that he came to the Bank in June, 1963, together with George Murdock, president of Motorlease, Inc., and Andrew Goldberg, its paid agent, to obtain a loan on behalf of Motorlease, Inc.; that he signed the note sued upon, in the name of Motorlease, Inc., as its Vice-President; and that with the intention of personally guaranteeing a loan to Motorlease, Inc., he also endorsed said note personally.

Anderson claims that he left said note with Goldberg to be delivered to the Bank when the loan was approved and made.

On July 15, 1963, $11,000 was loaned to Motorlease, Inc. on the basis of the note. Payments of interest and principal were made on the note from time to time, leaving an unpaid balance due in the amount of $10,303.51 as of July 28, 1964.

Even assuming that what defendant Anderson states in his affidavit is true, he is liable as a matter of law on the amount sued herein (D'Oench, Duhme & Co. v. F.D.I.C., 315 U.S. 447, 62 S.Ct. 676, 86 L.Ed. 956; F.D.I.C. v. Alker, 151 F.2d 907, cert. den. 327 U.S. 799, 66 S.Ct. 901, 90 L.Ed. 1025; F.D.I.C. v. Alker, 163 F.2d 123, cert. den. 334 U.S. 827, 68 S.Ct. 1337, 92 L.Ed. 1755; F.D.I.C. v. Alker, 164 F.2d 469, cert. den. 334 U.S. 827, 68 S.Ct. 1337, 92 L.Ed. 1755).

In the D'Oench, Duhme case, the situation was similar as herein. Petitioner therein had executed a demand note renewing earlier notes payable at a certain bank later insured by FDIC. The receipts for the earlier notes carried the statement: 'This note is given with the understanding it will not be called for payment.' There, too, petitioner alleged that the note was given without any consideration whatever. Notwithstanding the foregoing, the Court upheld FDIC's right to recover on the note as a matter of Federal public policy protecting the institution of banking, stating:

'* * * The reach of the rule which prevents an accommodation maker of a note from setting up the defense of no consideration against a bank or its receiver or creditors is not delimited to those instances where he has committed a statutory offense. * * * (he) is...