Orefice v. First Nat. City Bank

Decision Date26 October 1971
Citation37 A.D.2d 830,325 N.Y.S.2d 281
Parties, 9 UCC Rep.Serv. 1082 Sidney OREFICE, Plaintiff-Respondent, v. FIRST NATIONAL CITY BANK, Defendant-Appellant, and New York Stock Exchange, etc., et al., Defendants. FIRST NATIONAL CITY BANK, Defendant and Third-Party Plaintiff Respondent-Appellant, v. George VAN AKEN, et al., Third-Party Defendants-Appellants-Respondents.
CourtNew York Supreme Court — Appellate Division

H. Salvan, New York City, for plaintiff-respondent.

J. H. Becker, New York City, for First Nat. City Bank.

P. M. Wall, New York City, for third-party-defendants-appellants-respondents.

Before CAPOZZOLI, J.P., and MARKEWICH, NUNEZ, MURPHY and EAGER, JJ.

PER CURIAM.

Order, Supreme Court, New York County, entered April 16, 1971, which denied motion of defendant First National City Bank for rehearing and reargument in the matter of the granting of plaintiff's motion for summary judgment, unanimously reversed, on the law, and defendant-appellant shall recover of plaintiff-respondent $50 costs and disbursements of this appeal; including a reversal without costs and without disbursements and the vacating of the provisions therein for judgment over in favor of defendant First National City Bank against the third party defendants Van Aken; defendant Bank's motion for a rehearing granted and, thereupon, plaintiff's motion for summary judgment denied and the prior order entered March 10, 1971 and the judgment entered March 31, 1971 vacated; and the appeal from order entered on March 10, 1971 and from judgment entered on March 31, 1971 dismissed, without costs and without disbursements as academic. Clearly, the record indicates that there is an issue of fact as to whether or not the endorsements of the checks in plaintiff's name by Van Aken or his secretary were authorized. If authorized, the defendant bank would not be liable. (See Uniform Commercial Code, §§ 3--403(1), 3--405.) Moreover, in view of plaintiff's apparent lack of knowledge of the issuance of the checks, if appears that there are issues relating to the issuance and delivery thereof and extent of plaintiff's interest therein, if any. We note that defendant does request summary judgment on the ground that it appears as a matter of law that the plaintiff did not acquire any interest in the checks, but this request was not made in the notice of motion below and was not presented here until the service of the reply brief. Furthermore, the record is not such as to warrant...

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3 cases
  • Cook v. Great Western Bank & Trust
    • United States
    • Arizona Court of Appeals
    • June 5, 1984
    ... ...         Before addressing the legal issues involved, we must first resolve a substantial disagreement between the parties concerning the ... 220, 221, 426 N.E.2d 4, 5 (1981); Orefice v. First Ntl. City Bank, 37 [141 Ariz. 85] ... Page 150 ... Indiana Plumbing Supply Co. v. Bank of America Nat'l Trust and Sav. Ass'n, 255 Cal.App.2d 910, 63 Cal.Rptr. 658 (1968). See ... ...
  • Cherryvale Grain Co. v. First State Bank of Edna, 79208
    • United States
    • Kansas Court of Appeals
    • January 15, 1999
    ...653 (1974); Johnson v. North Bank, 99 Ill.App.3d 320, 323, 55 Ill.Dec. 220, 426 N.E.2d 4 (1981); Orefice v. First National City Bank, 37 App.Div.2d 830, 325 N.Y.S.2d 281 (1971). See generally Annot. 93 A.L.R.3d 967 CGC paid off the $60,000 indebtedness that can be traced to the forged instr......
  • Johnson v. North Bank, 80-298
    • United States
    • United States Appellate Court of Illinois
    • August 10, 1981
    ...fact. (Common Wealth Insurance Systems, Inc. v. Kersten (1974), 40 Cal.App.3d 1014, 115 Cal.Rptr. 653; Orefice v. First National City Bank (1971), 37 App.Div.2d 830, 325 N.Y.S.2d 281.) Here, the matters raised in the affidavit were material since the North Bank defendant may be relieved of ......

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