Royal Business Funds Corp. v. Commercial Trading Co., Inc.

• Citation: 59 A.D.2d 864,401 N.Y.S.2d 69
• Parties: ROYAL BUSINESS FUNDS CORP., Plaintiff-Respondent, v. COMMERCIAL TRADING COMPANY, INC., Defendant-Appellant.
• Decision Date: 15 November 1977
• Court: New York Supreme Court Appellate Division

Page 69

401 N.Y.S.2d 69

59 A.D.2d 864

ROYAL BUSINESS FUNDS CORP., Plaintiff-Respondent, v. COMMERCIAL TRADING COMPANY, INC., Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Nov. 15, 1977.

C. S. Port, New York City, for defendant-appellant.

L. Liner, New York City, for plaintiff-respondent.

Before MURPHY, P. J., and KUPFERMAN, SILVERMAN and CAPOZZOLI, JJ.

MEMORANDUM DECISION.

Appeals from order entered November 19, 1976, granting summary judgment to the plaintiff, dismissing the counterclaims, and denying defendant's cross-motion to vacate its default under the order of preclusion, and from the order entered December 22, 1976, denying reargument and renewal unanimously dismissed, without costs and without disbursements.

Judgment of the Supreme Court, New York County, entered January 4, 1977, awarding the plaintiff the sum of $33,567.35 against the defendant, unanimously reversed, on the law, with $60 costs and disbursements of this appeal to defendant-appellant, and the motion for leave to renew granted, and upon renewal, plaintiff's motion for summary judgment denied and defendant's motion for leave to vacate its default under the order of preclusion granted. Defendant is directed to serve its bill of particulars within 20 days after service upon it by plaintiff of a copy of the order to be entered hereon with notice of entry.

The appeal from the order (improperly denominated order and judgment), entered November 19, 1976 granting summary judgment to the plaintiff, dismissing the counterclaims, and denying defendant's motion to vacate its default, is dismissed as academic since that order was superseded by the order, entered December 22, 1976, denying reargument and implicitly denying renewal. (Hinckley v. Paige, 4 A.D.2d 949, 167 N.Y.S.2d 627). The appeal from the order, entered December 22, 1976, is an intermediate order that will be reviewed on the appeal from the final judgment. (CPLR § 5501(a) subd. 1; Maguire Leasing Corp. v. Irving Falb & Co., 49 A.D.2d 540, 371 N.Y.S.2d 123.) Hence, the separate appeal from that order must also be dismissed.

Bag-Time Industries, Inc., plaintiff's assignor, executed a guarantee of a factoring agreement between the defendant and Murray Mintz Industries, Inc. The plaintiff, Bag-Time's sole stockholder, maintains that Bag-Time's guarantee was not authorized under Section 908 of the Business Corporation Law but was effected by the unauthorized actions of Bag-Time's officers, Martin and Clifford Hartman. Plaintiff further maintains that, since the subject guarantee is not binding upon Bag-Time, defendant did not have the right to "charge back" against Bag-Time's account upon Mintz's default. Parenthetically, it should be noted that the Hartmans were also officers of Mintz.

Plaintiff's original motion for summary judgment was properly granted because defendant's principal had merely reiterated the pleadings in his opposing affidavit. (Indig v. Finkelstein, 23 N.Y.2d 728, 296 N.Y.S.2d 370, ...