Gonzalez v. Industrial Bank

• Decision Date: 05 January 1961
• Citation: 9 N.Y.2d 623,210 N.Y.S.2d 227
• Parties: , 172 N.E.2d 80 Yolanda Duque de Estrada GONZALEZ, Respondent, v. INDUSTRIAL BANK (OF CUBA), Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 227

210 N.Y.S.2d 227

9 N.Y.2d 623, 172 N.E.2d 80

Yolanda Duque de Estrada GONZALEZ, Respondent, v. INDUSTRIAL BANK (OF CUBA), Appellant.

Court of Appeals of New York.

Jan. 5, 1961.

Appeal from Supreme Court, Appellate Division, First Department, 10 A.D.2d 624, 196 N.Y.S.2d 926.

Action was commenced by warrant of attachment. The complaint alleged a cause of action based on breach by defendant of alleged agreement for the delivery of $132,000 in United States currency in the United States, evidenced by defendant's draft drawn on New York bank, and payable to the order of the plaintiff. The defendant made a motion pursuant to section 948 of the Civil Practice Act to set aside the warrant of attachment procured by the nonresident plaintiff on the property of the defendant, which was a corporation organized and existing under the laws of Cuba, on ground that papers on which attachment was granted were insufficient to confer jurisdiction on New York court in that they allegedly failed to show that the action was one which might be maintained by a nonresident against a foreign corporation, because they allegedly failed to establish a cause of action in favor of the plaintiff, and on ground that defendant was not subject to jurisdiction of New York court.

The Supreme Court, Special Term, New York County, Owen McGivern, J., 22 Misc.2d 874, 195 N.Y.S.2d 346, rendered an order denying the motion, and the defendant appealed.

The Appellate Division, 10 A.D.2d 624, 196 N.Y.S.2d 926, affirmed the order and held that there was enough of an allegation to support the claim of an over-all agreement as distinguished from the sale of a draft to require defendant to be put to answer, at least, and also, perhaps, to its proof.

The Appellate Division, 10 A.D.2d 828, 200 N.Y.S.2d 344, denied motion for leave to reargue, but granted motion for leave to appeal to the Court of Appeals.

The question was certified: 'Did the Appellate Division err, as a matter of law, in affirming the order of the Special Term, denying defendant's motion for an order vacating the warrant of attachment herein and setting aside the service of the summons and complaint?'

The defendant appealed to the Court of Appeals, contending that the transaction between the parties was the executed purchase and sale of a bank draft and that therefore the warrant of attachment could not be sustained on the basis of plaintiff's allegation of an agreement by defendant to deliver currency in the United...