Bank of New York v. Cheng Yu Corp.

67 A.D.2d 961, 413 N.Y.S.2d 471, 1979 N.Y. App. Div. LEXIS 10743

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 20, 1979
• Status: Published

Opinion

— In an action on a promissory note, defendant Hung Lin Hu appeals from an order of the Supreme Court, Nassau County, dated March 9, 1978, which granted plaintiff’s motion to strike his demand for a jury trial. Order reversed, with $50 costs and disbursements, and motion denied. This is an action on a promissory note which contained a clause under which the signer waived his right to a trial by jury in any action brought on the note. Appellant was sued as a personal guarantor of the note. While he admits having signed the guarantee, he alleges that he does not read or understand English and that the contents of the agreement were misrepresented to him by the individual codefendant and a bank officer. He contends that the note was therefore void as to him (see Pimpinello v Swift & Co., 253 NY 159). Appellant’s allegations, if proved, would void the instrument as to him, including the jury waiver clause. In these circumstances, the signer is entitled to a jury trial on the defense of misrepresentation (see, e.g., Federal Housecrañ v Faria, 28 Mise 2d 155; International Rooñng Corp. v Van Der Veer, 43 Mise 2d 93; Gardner & North Rooñng & Siding Corp. v Champagne, 55 Mise 2d 413; 4 Weinstein-Korn-Miller, NY Civ Prac, par 4102.13; cf. Freeman v Island Discount Corp., 5 AD2d 778; James Talcott, Inc. v Wilson Hosiery Co., 32 AD2d 524). We conclude, therefore, that Special Term erred in striking appellant’s jury demand. Damiani, J. P., Suozzi, Lazer and Rabin, JJ., concur.