Koondel v. Creative Capital Fund

36 A.D.2d 587, 318 N.Y.S.2d 150, 1971 N.Y. App. Div. LEXIS 4683

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 18, 1971
• Status: Published

Opinion

Concur-— McGivern, Nunez and Macken, JJ.; Stevens, P. J., and Capozzoli, J., dissent in the following memorandum by Capozzoli, J.: I dissent and vote to affirm the order appealed from. The instrument sued upon is a full and complete promissory note, payable on demand, and no issue is raised with regard to the execution and delivery thereof. Defendant’s claim that Benjamin Koondel, Inc., would not demand payment on the note until after the individual plaintiffs, who are the principal shareholders of Benjamin Koondel, Inc., had reinvested a sum equal to the money withdrawn from defendant in defendant, contradicts the express terms of the instrument itself and is, therefore, unavailable because it would violate the parol evidence rule (American Bank & Trust Co. v. Computer Prods., 36 A D 2d 525). Nor is the existence of “ potential ” counterclaims which, at this stage of the proceedings, are unasserted and purely speculative, a bar to the relief sought by plaintiffs.