Starr v. Yvette Co.

New York Supreme Court

Starr v. Yvette Co.

126 Misc. 35, 212 N.Y.S. 204, 1925 N.Y. Misc. LEXIS 1099

DecidedNovember 2, 1925

StatusPublished

This text of 126 Misc. 35 (Starr v. Yvette Co.) 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

Starr v. Yvette Co., 126 Misc. 35, 212 N.Y.S. 204, 1925 N.Y. Misc. LEXIS 1099 (N.Y. Super. Ct. 1925).

Pincite

Opinion

Proskauer, J.

The plaintiff sues as the assignee of a holder in due course of a promissory note. The defense is fraud in the inception of the note.

The defendant asks a bill of particulars as to the consideration which passed from the alleged holder in due course to its transferor. It is to be noted that the demand is not for the particulars of the consideration which passed to the defendant. The situation thus presented differs radically from that in Hague v. Northern Hotel Co. (77 Misc. 142); nor is the defense failure or want of consideration. While under the Negotiable Instruments Law (§§ 50, 52) the plaintiff’s assignor is presumed to be a holder in due course, this is a rebut-table presumption, and upon the trial, if the defendant proves the fraud alleged to have been perpetrated upon it by the immediate payee, the burden of actual proof will rest upon the plaintiff of proving that his assignor was a holder in due course. (Title Guarantee & Trust Co. v. Pam, 232 N. Y. 441, 452.) The defendant should be in a position to meet this proof and should be apprised of the necessary particulars to enable it to prepare for trial.

A bill of particulars will, therefore, be ordered specifying what value was paid by the Heilman Commercial Trust and Savings Bank for the note; whether the payment was by check or in cash; if by check, a copy of the check; if in cash, the amount of the cash; or if the value was given by credit, a statement of the amount of the credit; whether it was applied on account of a past indebtedness, or if not, when and in what manner the credit was used up by the transferor; also the time and place of the delivery of the note; whether the agreement respecting its delivery was oral or in writing; if in writing, a copy thereof, and if oral, the time and place where the agreement was made and the substance of the agreement.

With respect to the demand for the name of the officer of the Heilman Commercial Trust and Savings Bank with whom the agreement was made, it is the practice of this department also to order this particular where the party is a corporation. (Elman v. Ziegfeld, 200 App. Div. 494, 497; Alleghany Iron Co. v. Chesapeake & Ohio R. Co., 69 id. 87; American Woolen Co. v. Altkrug, 137 id. 621.)

Motion granted. Settle order on notice.

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Proskauer, J.

The plaintiff sues as the assignee of a holder in due course of a promissory note. The defense is fraud in the inception of the note.

The defendant asks a bill of particulars as to the consideration which passed from the alleged holder in due course to its transferor. It is to be noted that the demand is not for the particulars of the consideration which passed to the defendant. The situation thus presented differs radically from that in Hague v. Northern Hotel Co. (77 Misc. 142); nor is the defense failure or want of consideration. While under the Negotiable Instruments Law (§§ 50, 52) the plaintiff’s assignor is presumed to be a holder in due course, this is a rebut-table presumption, and upon the trial, if the defendant proves the fraud alleged to have been perpetrated upon it by the immediate payee, the burden of actual proof will rest upon the plaintiff of proving that his assignor was a holder in due course. (Title Guarantee & Trust Co. v. Pam, 232 N. Y. 441, 452.) The defendant should be in a position to meet this proof and should be apprised of the necessary particulars to enable it to prepare for trial.

A bill of particulars will, therefore, be ordered specifying what value was paid by the Heilman Commercial Trust and Savings Bank for the note; whether the payment was by check or in cash; if by check, a copy of the check; if in cash, the amount of the cash; or if the value was given by credit, a statement of the amount of the credit; whether it was applied on account of a past indebtedness, or if not, when and in what manner the credit was used up by the transferor; also the time and place of the delivery of the note; whether the agreement respecting its delivery was oral or in writing; if in writing, a copy thereof, and if oral, the time and place where the agreement was made and the substance of the agreement.

With respect to the demand for the name of the officer of the Heilman Commercial Trust and Savings Bank with whom the agreement was made, it is the practice of this department also to order this particular where the party is a corporation. (Elman v. Ziegfeld, 200 App. Div. 494, 497; Alleghany Iron Co. v. Chesapeake & Ohio R. Co., 69 id. 87; American Woolen Co. v. Altkrug, 137 id. 621.)

Motion granted. Settle order on notice.

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126 Misc. 35, 212 N.Y.S. 204, 1925 N.Y. Misc. LEXIS 1099, Counsel Stack Legal Research, https://law.counselstack.com/opinion/starr-v-yvette-co-nysupct-1925.

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