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Billings v. East River Savings Bank

Appellate Division of the Supreme Court of New York, First Department
Feb 2, 1970
33 A.D.2d 997 (N.Y. App. Div. 1970)

Opinion

February 2, 1970


Order entered September 13, 1968, denying third-party defendant-appellant's motion to dismiss the third-party complaint, unanimously reversed, on the law, with $50 costs and disbursements to the third-party defendant-appellant, and the motion granted, the action severed and the third-party complaint dismissed as to Morgan Guaranty Trust Company of New York. The depositor, the third-party plaintiff-respondent, having failed to give notice of the forged indorsements within three years from the date a statement of account accompanied by the checks was received from its bank, the third-party defendant-appellant, its claim against appellant is barred by both section 43 of the Negotiable Instruments Law and subdivision (4) of section 4-406 of the Uniform Commercial Code. These are not limitation statutes fixing the time within which action must be brought. They create a rule of substantive law, a statutory prerequisite of notice. A Statute of Limitations may be tolled; the bar of a condition precedent to liability may not be lifted. ( Shattuck v. Guardian Trust Co., 204 N.Y. 200, 209; Bloch v. Schwartz, 266 App. Div. 188, 190; Cohen v. Manufacturers Trust Co., 144 N.Y.S.2d 366, 370, Commander-Larabee Milling Co. v. Manufacturers Traders Trust Co., 61 F. Supp. 341; Wm. M. Barrett, Inc. v. First Nat. Bank of Shreveport, 191 La. 945.)

Concur — Stevens, P.J., Eager, Markewich, Nunez and Tilzer, JJ.


Summaries of

Billings v. East River Savings Bank

Appellate Division of the Supreme Court of New York, First Department
Feb 2, 1970
33 A.D.2d 997 (N.Y. App. Div. 1970)
Case details for

Billings v. East River Savings Bank

Case Details

Full title:BESSIE BILLINGS, as Administratrix, C.T.A. of the Estate of LILLIS COOPER…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Feb 2, 1970

Citations

33 A.D.2d 997 (N.Y. App. Div. 1970)

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