Duesler v. State Bank

Appellate Division of the Supreme Court of New York

Duesler v. State Bank

43 A.D.2d 598, 348 N.Y.S.2d 606, 1973 N.Y. App. Div. LEXIS 3237

Appellate Division of the Supreme Court of the State of New York·Decided November 1, 1973·Published

Opinion

Appeal from an order of the Supreme Court at Special Term, entered June ,15, 1972 in Montgomery County, which granted a motion by the defendants for summary judgment dismissing the complaint. The issues raised herein were disposed of upon the dismissal of the counterclaims in the prior action between these same parties (see State Bank of Albany v. Duesler, 41 A D 2d 1009), and that action is res judicata (see Granite Bond & Mtge. Corp. V. Hutchins, 225 App. Div. 412). Moreover, the defendant was not obligated to proceed against the security prior to demanding payment from plaintiff, and, since plaintiff was the chattel mortgagor, he obviously knew of the existence of the security. Thus, the alleged misrepresentation by1 the bank’s employee, that no security existed, is not one upon which claimant could have relied to his detriment. (Cf. 200 East End Ave. Corp. v. General Elec. Co., 5 A D 2d 415, 418.) Order affirmed, with costs. Herlihy, P. J., Greenblott, Cooke, Main and Reynolds, JJ., concur.

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Appeal from an order of the Supreme Court at Special Term, entered June ,15, 1972 in Montgomery County, which granted a motion by the defendants for summary judgment dismissing the complaint. The issues raised herein were disposed of upon the dismissal of the counterclaims in the prior action between these same parties (see State Bank of Albany v. Duesler, 41 A D 2d 1009), and that action is res judicata (see Granite Bond & Mtge. Corp. V. Hutchins, 225 App. Div. 412). Moreover, the defendant was not obligated to proceed against the security prior to demanding payment from plaintiff, and, since plaintiff was the chattel mortgagor, he obviously knew of the existence of the security. Thus, the alleged misrepresentation by1 the bank’s employee, that no security existed, is not one upon which claimant could have relied to his detriment. (Cf. 200 East End Ave. Corp. v. General Elec. Co., 5 A D 2d 415, 418.) Order affirmed, with costs. Herlihy, P. J., Greenblott, Cooke, Main and Reynolds, JJ., concur.

Duesler v. State Bank, 43 A.D.2d 598, 348 N.Y.S.2d 606, 1973 N.Y. App. Div. LEXIS 3237 (N.Y. Ct. App. 1973).

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