Opinion
January 9, 1925.
Appeal from Supreme Court of Westchester County.
B. Hershkopf [ H. Louis Jacobson and Henry W. Pollock with him on the brief], for the appellant.
Humphrey J. Lynch, for the respondent.
On this motion the letters from the American Consular Service, annexed to the affidavit of the plaintiff, and the letter addressed to the American Consul General by Peters, cannot be considered by this court. Their contents are purely hearsay and have, therefore, no probative force. The remaining statement in the affidavit is not helpful. The plaintiff nowhere states that the bank was closed, nor does he formally state that he presented the check at any counter of the bank, nor that he was informed by any one behind any counter of the bank that his check would not be paid.
The check pleaded in the complaint is a foreign bill of exchange, and the transaction described in the complaint was an executed purchase of the foreign bill. The contract being an executed contract, there can be no rescission thereof, and no action for money had and received will lie. ( American Express Co. v. Cosmopolitan Trust Co., 239 Mass. 249.) In the case just cited this question was clearly decided. There the plaintiff paid $92,500 to the defendant and received from the defendant a draft payable to its order and addressed to Credito Italiano, Genoa, Italy, for the sum of 2,000,000 lire, the maker of the draft being the Cosmopolitan Trust Company. The draft was duly presented to the drawee, and the latter refused to pay because the maker of the draft and the Commissioner of Banks of the Commonwealth of Massachusetts had ordered the drawee not to pay. The instrument was duly protested. The complaint in the action contained two counts — one for money had and received, $92,500 and interest; and the other count for damages for failure of the defendant to pay, or cause to be paid, on presentment at Genoa, Italy, the check or draft there in suit. The court in its opinion said: "The draft sold is a direction to the foreign correspondent bank to pay to the holder of the draft on demand the sum of money named therein as directed. The transaction was one of purchase and sale. It was not executory, it did not establish a trust or an agency, and it was completed with the delivery of the draft." The first cause of action, for money had and received, was dismissed. To the same effect see dictum of the Court of Appeals in Gravenhorst v. Zimmerman ( 236 N.Y. 22, 31).
The order granting the plaintiff's motion for summary judgment under rule 113 of the Rules of Civil Practice and the judgment entered thereupon should, therefore, be reversed on the law and the facts, with costs, and the motion for summary judgment denied, with ten dollars costs.
KELLY, P.J., RICH, JAYCOX and YOUNG, JJ., concur.
Order granting plaintiff's motion for summary judgment under rule 113 of the Rules of Civil Practice, and the judgment entered thereupon, reversed on the law and the facts, with costs, and motion for summary judgment denied, with ten dollars costs.