Opinion
276 A.D. 782 92 N.Y.S.2d 797 VOLPE v. MANHATTAN SAVINGS BANK. Supreme Court of New York, Second Department November 21, 1949
Antonio Volpe brought action against the Manhattan Savings Bank.
The trial court, Flannery, J., entered an order striking out defendant's answer and amended answer, and granted plaintiff's motion for summary judgment, and defendant appealed.
The Appellate Division, memorandum by the court, reversed the order and judgment and denied the motion, holding that papers submitted presented issues of fact which required denial of motion for summary judgment.
Daniel Cook, New York City, for appellant, L. Ray Glass, New York City, on brief.
Robert H. Law, Jr., New York City, for respondent.
Before NOLAN, P. J., and JOHNSTON, ADEL, SNEED and WENZEL, JJ.
MEMORANDUM BY THE COURT.
Action to recover from appellant savings bank the full amount to the credit of respondent's account in that bank prior to the issuance to respondent on April 19, 1945, of appellant's check which appellant then charged against that account. Respondent claims that the check was paid upon the unauthorized endorsement by a guardian who was appointed for respondent in an incompetency proceeding in the Superior Court of the State of North Carolina. Respondent moved for an order striking out the answer of the defendant, and for a summary judgment in his favor, without statement of the rule or rules under which he moved. After the notice of motion was served, and before it was heard, and within twenty days after the service of its original answer, appellant served an amended pleading an affirmative defense not alleged in its original answer. Without renewal of the motion after service of the amended answer, the motion was heard and an order was made striking out both the answer and the amended answer. That order further granted respondent's motion for summary judgment in his favor. Summary judgment was thereupon entered striking out the answer and the amended answer and awarding respondent recovery as prayed for in the complaint. The appeal to this court is from that order and from that judgment.
In our opinion the amended answer was served in good faith and not merely for purposes of delay.
In so far as the motion was one to strike out the answer, that pleading was superseded by the amended answer and thereafter had no existence as a pleading. Snedecor v. Chapel, 192 A.D. 915, 183 N.Y.S. 86; Dorries Saddlery Co., Inc., v. Howe, 198 N.Y.S. 673 [not officially published]; Dorf v. Corsa, 163 N.Y.S. 602 [not officially published]; Angelini v. Merchants Dispatch Transportation Co., 253 A.D. 506, 3 N.Y.S.2d 493; 3 Carmody's New York Practice, § 1141.
The motion for summary judgment should not have been granted, as the papers submitted presented issues of fact which must await trial. It may not be determined upon the affidavits presented that the check delivered by the appellant to the respondent on April 19, 1945, and then charged to his savings bank account by appellant, and then transported by respondent to North Carolina, did not constitute payment of the amount thereof to respondent. Furthermore, establishment by respondent of his residence in North Carolina, before the check was collected, is asserted by appellant's affidavits and denied by respondent. From the record presented it may not be determined whether, when the check was endorsed by the guardian and presented to the bank in North Carolina so endorsed, that bank purchased the negotiable instrument and then acquired full title to it or accepted it for collection only. See Weissman v. Banque De Bruxelles, 254 N.Y. 488, 173 N.E. 835; United States v. Guaranty Trust Co., 293 U.S. 340, 55 S.Ct. 221, 79 L.Ed. 415, 95 A.L.R. 651.
Order and judgment reversed upon the law, with $10 costs and disbursements, and the motion denied, without costs.