Milton Pilalas & Co. v. First National City Bank

New York Supreme Court

Milton Pilalas & Co. v. First National City Bank

17 Misc. 2d 218, 186 N.Y.S.2d 365, 1959 N.Y. Misc. LEXIS 3992

DecidedApril 2, 1959

StatusPublished

This text of 17 Misc. 2d 218 (Milton Pilalas & Co. v. First National City Bank) 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

Milton Pilalas & Co. v. First National City Bank, 17 Misc. 2d 218, 186 N.Y.S.2d 365, 1959 N.Y. Misc. LEXIS 3992 (N.Y. Super. Ct. 1959).

Pincite

Opinion

Saul S. Streit, J.

The .third-party defendants move for dismissal of the complaint for insufficiency. The action rests in part on a document of escrow deposit as follows:

‘ ‘ With reference to your letter of October 2, 1958 to Swiss Credit Bank, New York, N. Y., the above reference, we enclose our certified check in the amount of $7,238.63, representing 10% of the value of the merchandise to be delivered under the Letter Credit CCF 06053.

“ We certify that the beneficiary of this Letter of Credit will ship the balance of the merchandise not later than November 30, 1958 in one or several lots. In the event that this undertaking is not respected by them, we hereby authorize you to pay this 10% or $7,238.63 to the principal as indemnity. If the balance of the merchandise is shipped not later than November 30, 1958 you will please return this $7,238.63 to us.”

Actually, it was given, as appears, as security for the performance of an agreement and to indemnify the buyer in the event of the seller’s default. It is alleged that no shipment was [219]*219made on or before November 30,1958 and, accordingly, it would follow from the language of the document that the security is lost and is to be turned over to the principal as indemnity. It is further alleged, however, that the agreement between the buyer and seller required that the shipment be made on a vessel to be designated by the buyer, the latter failed and refused to designate, and thereby prevented performance by the seller. For the purpose of pleading, the escrow arrangement must be construed as surety for performance and requires further investigation as to meaning and the application thereof to the underlying transaction. It is alleged, in addition, that the buyer is a resident of Turkey, has no place of business or agency in New York, and is not subject to service of process here.

The motion is denied.

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Saul S. Streit, J.

The .third-party defendants move for dismissal of the complaint for insufficiency. The action rests in part on a document of escrow deposit as follows:

‘ ‘ With reference to your letter of October 2, 1958 to Swiss Credit Bank, New York, N. Y., the above reference, we enclose our certified check in the amount of $7,238.63, representing 10% of the value of the merchandise to be delivered under the Letter Credit CCF 06053.

“ We certify that the beneficiary of this Letter of Credit will ship the balance of the merchandise not later than November 30, 1958 in one or several lots. In the event that this undertaking is not respected by them, we hereby authorize you to pay this 10% or $7,238.63 to the principal as indemnity. If the balance of the merchandise is shipped not later than November 30, 1958 you will please return this $7,238.63 to us.”

Actually, it was given, as appears, as security for the performance of an agreement and to indemnify the buyer in the event of the seller’s default. It is alleged that no shipment was [219]*219made on or before November 30,1958 and, accordingly, it would follow from the language of the document that the security is lost and is to be turned over to the principal as indemnity. It is further alleged, however, that the agreement between the buyer and seller required that the shipment be made on a vessel to be designated by the buyer, the latter failed and refused to designate, and thereby prevented performance by the seller. For the purpose of pleading, the escrow arrangement must be construed as surety for performance and requires further investigation as to meaning and the application thereof to the underlying transaction. It is alleged, in addition, that the buyer is a resident of Turkey, has no place of business or agency in New York, and is not subject to service of process here.

The motion is denied.

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Bluebook (online)

17 Misc. 2d 218, 186 N.Y.S.2d 365, 1959 N.Y. Misc. LEXIS 3992, Counsel Stack Legal Research, https://law.counselstack.com/opinion/milton-pilalas-co-v-first-national-city-bank-nysupct-1959.