Dousmanis v. Colonial Bank

134 Misc. 472, 235 N.Y.S. 489, 1929 N.Y. Misc. LEXIS 880

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 27, 1929
• Status: Published

Opinions

Bijur, J.

From the argument I drew the inference that opposing counsel were not interested in questions of practice which might arise on the appeal from plaintiff’s motion and defendant’s cross-motion, but desired a decision addressed to the law of the case.

In my opinion defendant was not a holder in due course if for no other reason than that the drawee can probably never be so regarded. (Brannan Neg. Inst. Law [1926 ed.], 618, and cases cited.) (See, also, 42 Harv. Law Rev. 412 [Jan. 1929] and notes; Woodward Quasi-Contracts, § 80.)

On the other hand, for the reasons given by me in K. & K. Silk Trimming Co. v. Garfield Nat. Bank (127 Misc. 27, 31), I believe that the defendant was subrogated to the rights of the payee of the check against plaintiff and that its counterclaim may be sustained on that theory. Since, however, it appears to be conceded that the consideration for the check failed prior to its due date the counterclaim is without value.

For these reasons I think that the judgment and orders should be affirmed.