Pennsylvania Exchange Bank v. Lasko

• Decision Date: 30 January 1957
• Citation: 4 Misc.2d 1039,159 N.Y.S.2d 429
• Parties: PENNSYLVANIA EXCHANGE BANK, Plaintiff, v. Max LASKO d/b/a 125th Street Ferry Auto Sales Company, Defendant.
• Court: New York Supreme Court

Page 429

159 N.Y.S.2d 429

4 Misc.2d 1039

PENNSYLVANIA EXCHANGE BANK, Plaintiff, v. Max LASKO d/b/a 125th Street Ferry Auto Sales Company, Defendant.

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

Jan. 30, 1957.

Irving G. Schleimer, New York City, for plaintiff.

Gordon I. Novod, New York City, for defendant.

MATTHEW M. LEVY, Justice.

After a six-day trial before judge and jury--resulting in the cause being set for retrial because of the jury's disagreement--the plaintiff has made certain motions, as follows: (1) for summary judgment on six of the seven causes of action, Rules of Civil Practice No. 113; (2) to strike the defendant's answer as to the remaining count alleged in the complaint as sham and frivolous and directing an inquest, Rules Civ.Prac. No. 103; and (3) to conform the pleadings to the proof. Voluminous affidavits and exhibits are submitted, as well as a portion of the trial transcript. (Parenthetically, would not time and effort have been saved for counsel and court had Silverman v. Rogers Imports, Inc., Sup., 127 N.Y.S.2d 896, and Grobman v. Freiman, 3 Misc.2d 656, 152 N.Y.S.2d 898, been the accepted rule--and I might have been enabled to have referred this application to my learned colleague who presided at the trial?)

After careful consideration of the papers, I have come to the conclusion--assuming that a cause of action is pleaded in the complaint--that there is a triable issue here and that the plaintiff's application for summary judgment and to strike the answer should be denied. Insofar as the plaintiff seeks to amend its complaint, that motion is denied without prejudice to renewal at Special Term or upon a re-trial, upon due notice, and upon the presentation of an amended complaint specifically incorporation the changes desired to be made. (It should be noted here that, in my disposition hereinafter of the defendant's motion successfully attacking the sufficiency of the present complaint, I have given the plaintiff leave to amend.)

The defendant has counter-moved for judgment on the pleadings dismissing the complaint in that it does not on its face state facts sufficient to constitute a cause of action, Rules Civ.Prac. No. 112. It does not appear whether or not such a motion was made upon the trial. In any event, if made, its denial is not conclusive where, as a result of the abortiveness of the trial, no judgment was entered in the action. Cf. Kramer v. United States Fidelity & Guaranty Co., 212 App.Div. 644, 209 N.Y.S. 419. And a motion for judgment of dismissal, if warranted by the pleadings or admissions of a party, may be made at any time during the progress of the litigation, indeed, 'at any stage of an action or appeal'. Civil Practice Act, § 476. The application must be considered on the pleadings alone, unaided by extrinsic proof,--other than 'the admissions of a party.' Civ.Prac.Act, § 476. There are no admissions made by the defendant in the record before me which have been noted by the plaintiff to sustain the present complaint--and my search of the papers submitted to me does not disclose any such admission.

The complaint alleges, in substance, in each of its causes of action, as follows: The defendant is an auto sales company; Lowell Adams is a discount company; the plaintiff is a bank. One of the defendant's customers executed a conditional sales contract and its accompanying note. The discount company bought the contract and note from the defendant. In the sale, the defendant made certain warranties to the discount company as to pre-existing and existing matters, and agreed that if any of these warranties were untrue, the defendant would, upon demand, repurchase the note and contract from the discount company, paying the amount due thereon plus the discount company's expenses. The plaintiff thereafter purchased the note and contract from the discount company. The warranties were untrue. There was a balance due. The plaintiff made demand upon the defendant that the defendant repurchase the contract and note, which the defendant refused to do.

At this point, I want to direct attention to the precise allegations of the relevant portions of the complaint. It is there pleaded that 'the defendant agreed that if any of the aforesaid warranties [as to certain matters represented by the defendant to Lowell Adams to be the fact when the defendant sold to Lowell Adams the note and contract executed by the defendant's customer] were untrue, the defendant would repurchase from the said Lowell Adams Discount Co., Inc., upon demand the said note and conditional sales contract, and would pay therefor the amount due and owing thereon, plus any and all costs and expenses paid or incurred by Lowell Adams Discount Co., Inc., in respect thereto.' Then it is alleged in the complaint that 'the plaintiff [thereafter] purchased the aforesaid note and conditional sales contract from Lowell...