Tarrytown National Bank & Trust Co. v. McMahon

250 A.D. 739, 293 N.Y.S. 513, 1937 N.Y. App. Div. LEXIS 8694

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 26, 1937
• Status: Published

Opinion

Action upon a promissory note indorsed by defendants Robert J. Warren and Fred J. Warren. Order denying plaintiff’s motion for summary judgment under rule 113 of the Rules of Civil Practice reversed on the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. The defense of the Warrens was that they were indorsers of the note for the accommodation of the plaintiff bank and that the said note was in renewal of a similar note which had been indorsed by their father. They claimed that the bank had agreed that the note was not to be a personal obligation but to be an obligation of the estate of their father. The defense is insufficient in law, assuming any such agreement was made. “ Public policy requires that a person who, for the accommodation of the bank executes an instrument which is in form a binding obligation, should be estopped from thereafter asserting that simultaneously the parties agreed that the instrument should not be enforced.” (Mount Vernon Trust Co. v. Bergoff, 272 N. Y. 192; Westchester Trust Company v. Harrison, 249 App. Div. 828.) Lazansky, P. J., Hagarty, Carswell, Adel and Taylor, JJ., concur.