Von Fricken v. Bankers Trust Co.

Appellate Division of the Supreme Court of New York

Von Fricken v. Bankers Trust Co.

254 A.D. 874, 4 N.Y.S.2d 928, 1938 N.Y. App. Div. LEXIS 8124

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 6, 1938

StatusPublished

Cited by1 cases

This text of 254 A.D. 874 (Von Fricken v. Bankers Trust Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Von Fricken v. Bankers Trust Co., 254 A.D. 874, 4 N.Y.S.2d 928, 1938 N.Y. App. Div. LEXIS 8124 (N.Y. Ct. App. 1938).

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Opinion

— Plaintiff alleges in his complaint that the defendant collected the proceeds of seven cheeks drawn to his order and paid the proceeds over to another upon the latter’s forged indorsement. The answer sets up the Statute of Limitations, and defendant moved to dismiss on the ground that the causes of action are barred [875]*875thereby. Order granting defendant’s motion to dismiss the amended complaint, and the judgment entered thereon, unanimously affirmed, with ten dollars costs and disbursements. No demand was necessary to perfect plaintiff’s right of action. A demand is a prerequisite to commencement of the limitation period where a bank has paid "on a forged instrument and seeks to impair funds of the maker on deposit, but there is no such impairment here and the gravamen of the action is conversion regardless of its form. (Leather Manf. Bank v. Merchants’ Bank, 128 U. S. 26; Glover v. National Bank of Commerce, 156 App. Div. 247; Wood v. Young, 141 N. Y. 211; Stacy v. Graham, 14 id. 492; hammer v. Stoddard, 103 id. 672, and Mills v. Mills, 115 id. 80.) Present — Lazansky, P. J., Hagarty, Carswell, Adel and Close, JJ.

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— Plaintiff alleges in his complaint that the defendant collected the proceeds of seven cheeks drawn to his order and paid the proceeds over to another upon the latter’s forged indorsement. The answer sets up the Statute of Limitations, and defendant moved to dismiss on the ground that the causes of action are barred [875]*875thereby. Order granting defendant’s motion to dismiss the amended complaint, and the judgment entered thereon, unanimously affirmed, with ten dollars costs and disbursements. No demand was necessary to perfect plaintiff’s right of action. A demand is a prerequisite to commencement of the limitation period where a bank has paid "on a forged instrument and seeks to impair funds of the maker on deposit, but there is no such impairment here and the gravamen of the action is conversion regardless of its form. (Leather Manf. Bank v. Merchants’ Bank, 128 U. S. 26; Glover v. National Bank of Commerce, 156 App. Div. 247; Wood v. Young, 141 N. Y. 211; Stacy v. Graham, 14 id. 492; hammer v. Stoddard, 103 id. 672, and Mills v. Mills, 115 id. 80.) Present — Lazansky, P. J., Hagarty, Carswell, Adel and Close, JJ.

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Bluebook (online)

254 A.D. 874, 4 N.Y.S.2d 928, 1938 N.Y. App. Div. LEXIS 8124, Counsel Stack Legal Research, https://law.counselstack.com/opinion/von-fricken-v-bankers-trust-co-nyappdiv-1938.

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