Gesell v. First National City Bank

Appellate Division of the Supreme Court of New York

Gesell v. First National City Bank

24 A.D.2d 424, 260 N.Y.S.2d 581, 1965 N.Y. App. Div. LEXIS 3961

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

DecidedJune 10, 1965

StatusPublished

Cited by9 cases

This text of 24 A.D.2d 424 (Gesell v. First National City 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.

Bluebook

Gesell v. First National City Bank, 24 A.D.2d 424, 260 N.Y.S.2d 581, 1965 N.Y. App. Div. LEXIS 3961 (N.Y. Ct. App. 1965).

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Opinion

Order, entered on December 18, [425]*4251964, unanimously reversed on the law, with $30 costs and disbursements to appellant, and the motion to dismiss the fifth cause of action granted, with $10 costs. The fifth cause of action is in negligence and charges that defendant breached a duty owed plaintiffs by accepting forged signatures of plaintiffs on securities pledged with defendant for loans made to another. Before there can be a breach of a duty, such duty must be shown to exist. This plaintiffs cannot do. If defendant wrongfully interfered with or wrongfully detained the property of these plaintiffs the remedy afforded lies in trover and conversion. These plaintiffs were not general depositors, where the bank would be a debtor, nor special depositors, where a relationship of bailor-bailee would exist (5 N. Y. Jur., Banks and Trust Companies, §§ 207, 227). Nothing is alleged which establishes a relationship limiting the duty to one merely of care, for the breach of which defendant would be liable to these plaintiffs in negligence. (Stella Flour & Feed Corp. v. National City Bank, 285 App. Div. 182, affd. 308 N. Y. 1023; 9 C. J. S., Banks and Banking, § 389, subd. d.) Concur — Breitel, J. P., Rabin, Stevens, Eager and Steuer, JJ.

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Order, entered on December 18, [425]*4251964, unanimously reversed on the law, with $30 costs and disbursements to appellant, and the motion to dismiss the fifth cause of action granted, with $10 costs. The fifth cause of action is in negligence and charges that defendant breached a duty owed plaintiffs by accepting forged signatures of plaintiffs on securities pledged with defendant for loans made to another. Before there can be a breach of a duty, such duty must be shown to exist. This plaintiffs cannot do. If defendant wrongfully interfered with or wrongfully detained the property of these plaintiffs the remedy afforded lies in trover and conversion. These plaintiffs were not general depositors, where the bank would be a debtor, nor special depositors, where a relationship of bailor-bailee would exist (5 N. Y. Jur., Banks and Trust Companies, §§ 207, 227). Nothing is alleged which establishes a relationship limiting the duty to one merely of care, for the breach of which defendant would be liable to these plaintiffs in negligence. (Stella Flour & Feed Corp. v. National City Bank, 285 App. Div. 182, affd. 308 N. Y. 1023; 9 C. J. S., Banks and Banking, § 389, subd. d.) Concur — Breitel, J. P., Rabin, Stevens, Eager and Steuer, JJ.

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Bluebook (online)

24 A.D.2d 424, 260 N.Y.S.2d 581, 1965 N.Y. App. Div. LEXIS 3961, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gesell-v-first-national-city-bank-nyappdiv-1965.

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