Gesell v. First National City Bank

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

Opinion

Order, entered on December 18, 1964, 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.