Miron Rapid Mix Concrete Corp. v. Bank Hapoalim, B. M.
| Decision Date | 10 October 1980 |
| Citation | 432 N.Y.S.2d 776,105 Misc.2d 630 |
| Parties | , 30 UCC Rep.Serv. 1017 MIRON RAPID MIX CONCRETE CORP., Plaintiff, v. BANK HAPOALIM, B. M., Defendant. BANK HAPOALIM, B. M., Third-Party Plaintiff, v. REVEL CONSTRUCTION COMPANY, INC. and Trajan, Inc., Third-Party Defendants. |
| Court | New York Supreme Court |
Vasti, Orcutt, Rinaldi & Gilhuly, Pleasant Valley, for plaintiff.
McCabe & Mack, Poughkeepsie, for defendant Bank Hapoalim, B. M.
Saccoman & DiDonna, Kingston, for defendant Trajan, Inc.
This is a motion by the defendant-third-party plaintiff, Bank Hapoalim, B. M., for summary judgment dismissing the plaintiff's complaint. The plaintiff cross-moves for summary judgment.
The plaintiff commenced this action to recover damages in the amount of $10,000.00 for the alleged improper and unauthorized action by the Bank Hapoalim, B. M. in accepting for deposit a check drawn by the third-party defendant, Trajan, Inc.
The check, drawn and presented to the bank for deposit, was made payable to the order "Revel/Miron Ready Mix".
In March, 1979, Revel Construction Company, Inc. deposited the check in its account with the bank. The check contained the endorsement of "Revel". It is the claim of the bank that it accepted the check for deposit in good faith, and no evidence is submitted by the plaintiff which would imply otherwise.
The bank, as third-party plaintiff, commenced a third-party action against the third-party defendants, Revel Construction Company, Inc. and Trajan, Inc. which third-party action seeks an indemnity from the third-party defendants in the event the plaintiff recovers against the bank.
The principal thrust of the plaintiff's action and its motion for summary judgment is that the signatures of both "Revel" and "Miron Ready Mix" were necessary in order to properly negotiate the check in question, and it is alleged that the bank accepted for deposit and paid the check in issue without the endorsement of the co-payee as required by § 3-116 of the Uniform Commercial Code.
This appears to be a case of first impression in New York State.
The primary issue raised herein revolves around the meaning of the (/), or virgule, between the names of the two payees on the check in question.
By various dictionary definitions, the symbol (/), or virgule, denotes the disjunctive or alternative. "Virgule" is defined as follows:
"In modern printing and writing, a short slanting stroke drawn between two words, usually 'and' and 'or' (thus, and/or), and indicting that either may be used by the reader to interpret the sense." (Webster's New International Dictionary of the English Language.) (See also, Funk & Wagnalls Standard Desk Dictionary, the Random House Dictionary of the English Language, UnAbridged (1966), and the American Heritage Dictionary of the English Language (1969)).
The defendant's counsel's statement that his extensive research indicated that he has found only two cases in the country that have addressed this issue is well founded. This Court's independent research in attempting to resolve this unique issue has likewise failed to reveal any cases in point reported in this State. The only two cases which are appropriate to the issue have been cited by counsel (Dynalectron Corp. v. Union First Bank, 488 F.Supp. 868 (D.C.D.C., 1980); Ryland Group, Inc. v. Gwinnet, 117 Ga.App. 128, 258 S.E.2d 776 (27 U.C.C.Rep. 717) (1979)).
In Dynalectron Corp. v. Union First Bank, supra, the Court stated as follows:
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