Gonzalez v. Industrial Bank of Cuba

• Decision Date: 19 November 1959
• Citation: 195 N.Y.S.2d 346,22 Misc.2d 874
• Parties: Yolanda Duque De Estrada GONZALEZ, Plaintiff, v. INDUSTRIAL BANK (OF CUBA), Defendant.
• Court: New York Supreme Court

Page 346

195 N.Y.S.2d 346

22 Misc.2d 874

Yolanda Duque De Estrada GONZALEZ, Plaintiff, v. INDUSTRIAL BANK (OF CUBA), Defendant.

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

Nov. 19, 1959.

Willkie, Farr, Gallagher, Walton & Fitzgibbon, New York City (Mark F. Hughes, Kenneth J. Bialkin, New York City, of counsel), for plaintiff.

Angulo, Cooney, Marsh & Ouchterloney, New York City (Dinsmore Adams, New York City, Robert L. Higgins, New York City, of counsel), for defendant.

OWEN McGIVERN, Justice.

The defendant bank moves pursuant to section 948 of the Civil Practice Act to set aside a warrant of attachment procured by plaintiff upon property of the defendant, a foreign corporation organized and existing under the laws of Cuba. It is urged that the papers upon which attachment was granted were insufficient to confer jurisdiction on this court in that they allegedly fail to show that this action is one which may be maintained by a non-resident against a foreign corporation, in that they allegedly fail to show a cause of action in favor of plaintiff, and further that the defendant is not subject to our jurisdiction.

It appears that plaintiff, the wife of the former Mayor of Guanabocoa, Cuba, because of political unrest and as a protection for her family, was desirous of converting pesos into United States dollars, to be delivered to her in New York; that to accomplish such purpose she sent her mother to the branch office of the defendant in Guanabocoa to purchase for her American dollars, for delivery in the United States; the mother, it appears, paid sufficient pesos in cash to permit the delivery to plaintiff in New York of $132,000, at the same time paying to the bank the equivalent of approximately $3,000 for its services, also a 2% export tax and other incidental charges. Thereupon, the defendant issued its draft payable to the plaintiff's order upon the Colonial Trust Company in New York and delivered it, in duplicate, to plaintiff's mother. 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.'

Two days after the visit of the plaintiff's mother to the bank, President Batista resigned and fled from Cuba, the Castro forces marched upon Havana, the plaintiff's husband took refuge in the Brazilian Embassy and the plaintiff was arrested. On April 5, 1959 she was released, following which she left with her mother and child for Miami, where she was ultimately reunited with her husband on May 11, 1959.

On or about April 10, 1959 the plaintiff, 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-months period stated on the face of the draft. The Colonial Trust Company did not act upon the matter immediately, but requesting instructions from defendant, was directed not to honor the draft.

In the view of this court, it is immaterial whether plaintiff now claims on the basis of the underlying debt, or upon the written instrument, since plaintiff has pleaded and shown sufficient facts to support either theory. And whether viewed as a contract for the delivery of United States dollars in New York or as an action upon the draft, the cause of action arose within this State. In either case, the place of performance of the defendant's obligations was New York. And the refusal to pay plaintiff in New York gave rise...