Eaton Factors Co. v. CITC Industries, Inc.

Order, Supreme Court, New York County, entered on March 26, 1973, and the judgment entered thereon on March 26, 1973, unanimously reversed, on the law, the motion of plaintiff-respondent for summary judgment pursuant to CPLR 3213 denied, and the judgment vacated. Appellant shall recover of respondent $60 costs and disbursements of this appeal. There are issues of fact as to whether plaintiff-respondent is a holder in due course of the check stopped by defendant-appellant. Defendant-appellant had issued its check for warehouse services for the month that had just commenced and, on the following day, having discovered that the warehouse had been closed, its phone disconnected, and the employees gone, stopped the check. Plaintiff, factor for the warehouseman, had gotten the check and indorsed. both the warehouse’s name and its name thereon. There are indications that plaintiff had full knowledge of the acts of the check’s payee. Indeed, when the payee of the check closed the warehouse, it moved to space in plaintiff’s own building. Plaintiff’s status as holder in due course is at least in doubt. The unusual circumstances found require that the issues be framed by formal pleadings, and it is so directed. A complaint shall be served within 20 days after the date of the order entered hereon, with answer to be served within 10 days thereafter. Concur — Markewich, J. P., Nunez, Kupferman, Murphy and Macken, JJ.