Billings v. East River Savings Bank

Appellate Division of the Supreme Court of New York

Billings v. East River Savings Bank

33 A.D.2d 997, 307 N.Y.S.2d 606, 7 U.C.C. Rep. Serv. (West) 237, 1970 N.Y. App. Div. LEXIS 5607

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 2, 1970

StatusPublished

Cited by9 cases

This text of 33 A.D.2d 997 (Billings v. East River Savings Bank) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Billings v. East River Savings Bank, 33 A.D.2d 997, 307 N.Y.S.2d 606, 7 U.C.C. Rep. Serv. (West) 237, 1970 N.Y. App. Div. LEXIS 5607 (N.Y. Ct. App. 1970).

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Opinion

Order entered September 13, 1968, denying third-party defendant-appellant’s motion to dismiss the third-party complaint, unanimously reversed, on the law, with $50 costs and disbursements to the third-party defendant-appellant, and the motion granted, the action severed and the third-party complaint dismissed as to Morgan Guaranty Trust Company of New York. The depositor, the third-party plaintiff-respondent, having failed to give notice of the forged indorsements within three years from the date a statement of account accompanied by the checks was received from its bank, the third-party defendant-appellant, its claim against appellant is barred by both section 43 of the Negotiable Instruments Law and subdivision (4) of section 4-406 of the Uniform Commercial Code. These are not limitation statutes fixing the time within which action must be brought. They create a rule of substantive law, a statutory prerequisite of notice. A Statute of Limitations may be tolled; the bar of a condition precedent to liability may not be lifted. (Shattuck v. Guardian Trust Co., 204 N. Y. 200, 209; Bloch v. Schwartz, 266 App. Div. 188, 190; Cohen v. Manufacturers Trust Co., 144 N. Y. S. 2d 366, 370, Commander-Larabee Milling Co. v. Manufacturers & Traders Trust Co., 61 F. Supp. 341; Wm. M. Barrett, Inc. v. First Nat. Bank of Shreveport, 191 La. 945.) Concur ■ — ■ Stevens, P. J., Eager, Markewich, Nunez and Tilzer, JJ.

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Order entered September 13, 1968, denying third-party defendant-appellant’s motion to dismiss the third-party complaint, unanimously reversed, on the law, with $50 costs and disbursements to the third-party defendant-appellant, and the motion granted, the action severed and the third-party complaint dismissed as to Morgan Guaranty Trust Company of New York. The depositor, the third-party plaintiff-respondent, having failed to give notice of the forged indorsements within three years from the date a statement of account accompanied by the checks was received from its bank, the third-party defendant-appellant, its claim against appellant is barred by both section 43 of the Negotiable Instruments Law and subdivision (4) of section 4-406 of the Uniform Commercial Code. These are not limitation statutes fixing the time within which action must be brought. They create a rule of substantive law, a statutory prerequisite of notice. A Statute of Limitations may be tolled; the bar of a condition precedent to liability may not be lifted. (Shattuck v. Guardian Trust Co., 204 N. Y. 200, 209; Bloch v. Schwartz, 266 App. Div. 188, 190; Cohen v. Manufacturers Trust Co., 144 N. Y. S. 2d 366, 370, Commander-Larabee Milling Co. v. Manufacturers & Traders Trust Co., 61 F. Supp. 341; Wm. M. Barrett, Inc. v. First Nat. Bank of Shreveport, 191 La. 945.) Concur ■ — ■ Stevens, P. J., Eager, Markewich, Nunez and Tilzer, JJ.

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33 A.D.2d 997, 307 N.Y.S.2d 606, 7 U.C.C. Rep. Serv. (West) 237, 1970 N.Y. App. Div. LEXIS 5607, Counsel Stack Legal Research, https://law.counselstack.com/opinion/billings-v-east-river-savings-bank-nyappdiv-1970.

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