[DOWNLOAD] "Alan J. Rosenberg" by Supreme Court of New York # eBook PDF Kindle ePub Free
eBook details
- Title: Alan J. Rosenberg
- Author : Supreme Court of New York
- Release Date : January 27, 1992
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 53 KB
Description
Order, Supreme Court, New York County (Beverly S. Cohen, J.), entered March 4, 1992, which, inter alia, granted the motion
of defendant-third-party plaintiff for summary judgment, unanimously affirmed, with costs. We agree with the IAS court's determination that the third-party defendant surety failed to come forward with evidentiary
support for its claim that the indemnity bond could be rescinded. The terms of the bond are clear and unambiguous. The surety
agreed to make the bank whole if it paid out to the wrong party, and the thrust of the plaintiff's suit is that the bank did
just that. The plaintiff's present possession of the disputed depository receipts does not establish that the receipts were
not stolen, lost or misplaced. There is no basis for the claim of mutual mistake, or the allegation that the bank is guilty
of commercial bad faith. The surety did not act on the representations of the bank; rather the surety acted on the representations
of the fourth-party defendants (Federal Ins. Co. v Walker, 74 A.D.2d 772, 773, mod 53 N.Y.2d 24). In this regard, while fraud
by a creditor touching a surety contract annuls it (Matter of First Citizens Bank & Trust Co. of Utica v Sherman, 250
App Div 339), the fourth-party defendant, not the bank, is the "creditor" in the circumstances presented.