Gonzalez v. Industrial Bank (of Cuba)

• Decision Date: 26 December 1961
• Parties: Yolanda Duque de Estrada GONZALEZ, Plaintiff, v. INDUSTRIAL BANK (OF CUBA), Defendant, and Banco Nacional de Cuba, Intervenor- Defendant.
• Court: New York Supreme Court

Page 459

227 N.Y.S.2d 459

33 Misc.2d 285

Yolanda Duque de Estrada GONZALEZ, Plaintiff, v. INDUSTRIAL BANK (OF CUBA), Defendant, and Banco Nacional de Cuba, Intervenor- Defendant.

Supreme Court, Special and Trial Term, New York County, Part X.

Dec. 26, 1961.

Willkie, Farr, Gallagher, Walton & FitzGibbon, New York City, for plaintiff.

Rabinowitz & Boudin, New York City, for intervenor-defendant.

OWEN McGIVERN, Justice.

This is an action by a Cuban matron, now a refugee living in the United States, to recover the sum of $132,000 in United States currency; this latter sum was to be available to the plaintiff at the Colonial Trust Company in New York, in exchange for an equivalent sum of pesos paid by the plaintiff to the defendant Industrial Bank of Cuba.

The proof on trial revealed that, following a family consultation, it was decided to transmit money to the United States with the intention of investing in real property. The family group consisted of the plaintiff's mother, the plaintiff, her husband and four children. Testimony was to the effect that a legacy from the plaintiff's father, deceased, passed from the plaintiff to her husband by virtue of a power of attorney; plaintiff's mother testified similarly to a like arrangement.

On the eve of the Castro triumph, on December 30, 1958, the plaintiff's mother was dispatched to the Guanabacoa Branch of the Industrial Bank with a check in the sum of 135,000 pesos signed by the plaintiff's husband and with instructions to acquire in exchange an equivalent amount of United States dollars which were to be made available in the United States. The details of the transaction were handled at the bank by the bank's administrator, a Mr. Rousseau, known to the plaintiff's family. Indeed, Mr. Rousseau testified at the trial, and confirmed the plaintiff's position that the end and aim of the transaction was the delivery of United States dollars in New York. Of significance is that one of the details of the transaction was the giving of an excess sum of American dollars to the plaintiff's mother at the time . The plaintiff's mother returned home, bearing with her a draft in the sum of $132,000, American, drawn on the Colonial Trust Company, New York, The draft was dated December 30, 1958, and stated on its face, 'This draft must be presented for payment within three months of date hereof.' This draft was then given to a family friend who was enroute to the United States. A few days thereafter the Batista regime disintegrated, the plaintiff's husband found asylum in the Brazilian embassy, the family was dispersed, but finally reunited in Miami, Florida, about May, 1959. Previously thereto, the plaintiff, upon her arrival in Miami, and on April 10, 1959, through the Pan-American Bank of Miami, presented the draft at the Colonial Trust Company in New York; this was about ten days after the three-month period stated on the face of the draft. The Colonial Trust Company did not react immediately; and following instructions from the defendant Industrial, eventually rejected payment.

The defendant has attempted to justify rejection of the plaintiff's claim on the ground that the Industrial Bank acted validly pursuant to directions of what is called the Currency Stabilization Fund of Cuba and on the further ground that the funds in question originated from certain extra-curricular activities carried on by the plaintiff's husband while he was the Mayor of Guanabacoa. The court rejects both contentions. The latter was not proved, and as to the former, the court adopts the testimony of the bank administrator, Mr. Rousseau, that prior approval of the Currency Stabilization Fund was...