Franklin National Bank v. Jeannopulos

New York Supreme Court

Franklin National Bank v. Jeannopulos

6 Misc. 2d 621, 167 N.Y.S.2d 66, 1957 N.Y. Misc. LEXIS 3437

DecidedFebruary 26, 1957

StatusPublished

This text of 6 Misc. 2d 621 (Franklin National Bank v. Jeannopulos) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Franklin National Bank v. Jeannopulos, 6 Misc. 2d 621, 167 N.Y.S.2d 66, 1957 N.Y. Misc. LEXIS 3437 (N.Y. Super. Ct. 1957).

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Opinion

Marcus G. Christ, J.

This is a motion for summary judgment by a bank upon a note which it claims to have acquired as a holder in due course.

The defendants bought storm windows from the payee Best Window Co., now out of business. The defendants claim the work of installation was unfinished and defective.

Defendants, a physician and his wife well able to understand the purport and effect of a promissory note, are not to be excused from the effects of its enforcement because they say that they neither read it, nor was it read to them. However, enough has been shown to defeat this motion for summary judgment (Negotiable Instruments Law, § 98).

Defendants say that when they signed the paper there was written across the face of it in pencil the words “ 90 days cash ”. There was no other writing or typed matter on the printed form.

There is a question of fact as to the condition of the note when it was signed, delivered to the payee and when it was presented to the bank. The erasure of this phrase would be a material alteration, which if made at the bank would destroy its status as a “ holder in due course ”, or, at best, if the alteration were made without the bank’s knowledge the instrument would be enforcible only according to its original tenor (Negotiable Instruments Law, § 205). A full trial of the facts is required. Motion denied.

Submit order.

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Marcus G. Christ, J.

This is a motion for summary judgment by a bank upon a note which it claims to have acquired as a holder in due course.

The defendants bought storm windows from the payee Best Window Co., now out of business. The defendants claim the work of installation was unfinished and defective.

Defendants, a physician and his wife well able to understand the purport and effect of a promissory note, are not to be excused from the effects of its enforcement because they say that they neither read it, nor was it read to them. However, enough has been shown to defeat this motion for summary judgment (Negotiable Instruments Law, § 98).

Defendants say that when they signed the paper there was written across the face of it in pencil the words “ 90 days cash ”. There was no other writing or typed matter on the printed form.

There is a question of fact as to the condition of the note when it was signed, delivered to the payee and when it was presented to the bank. The erasure of this phrase would be a material alteration, which if made at the bank would destroy its status as a “ holder in due course ”, or, at best, if the alteration were made without the bank’s knowledge the instrument would be enforcible only according to its original tenor (Negotiable Instruments Law, § 205). A full trial of the facts is required. Motion denied.

Submit order.

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Bluebook (online)

6 Misc. 2d 621, 167 N.Y.S.2d 66, 1957 N.Y. Misc. LEXIS 3437, Counsel Stack Legal Research, https://law.counselstack.com/opinion/franklin-national-bank-v-jeannopulos-nysupct-1957.