Smith v. Continental Bank Trust Co. of N.Y.
New York Court of Appeals
The failure of the complaint to allege that plaintiffs’ testator was the owner of the bonds at the time of the commencement of the action is not a fatal defect and it is sufficient that the plaintiff was the owner of the bonds at the time of the alleged acts of gross negligence by the defendant. The filing of the bonds with the receiver of the guarantor of said bonds with all unpaid coupons attached did not divest plaintiffs’ testator of the causes of action herein.
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The failure of the complaint to allege that plaintiffs’ testator was the owner of the bonds at the time of the commencement of the action is not a fatal defect and it is sufficient that the plaintiff was the owner of the bonds at the time of the alleged acts of gross negligence by the defendant. The filing of the bonds with the receiver of the guarantor of said bonds with all unpaid coupons attached did not divest plaintiffs’ testator of the causes of action herein. (.Mittlemann v. President & Directors of Manhattan Go., 272 N. Y. 632; Weil v. President etc., of Manhattan Go., 275 N. Y. N. Y.…
1Opinion of the CourtCoNway, J.
Appeal by permission of the” Appellate Division, Third Department, which affirmed an order of Special Term, granting defendant’s motion to dismiss the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The following question has been certified: “ Does the complaint state facts sufficient to constitute a cause of action? ”
The complaint, originally of plaintiffs’ testator, alleges • causes of action. The first cause of action alleges that on or about January 1, 1921, the 565 Fifth Avenue Corporation secured a loan from S. W. Straus & Co., Inc., of…
2Cases cited6 opinions
- Hanna v. . LyonNew York Court of Appeals · 1904
- Elkind v. Chase National Bank of City of New YorkNew York Court of Appeals · 1940
- Hendry v. Title Guarantee & Trust Co.Appellate Division of the Supreme Court of the State of New York · 1938
- Hendry v. Title Guarantee and Trust CompanyNew York Court of Appeals · 1939
- Weil v. President & Directors of the Manhattan Co.New York Court of Appeals · 1937
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3Cited by17 opinions
- York v. Guaranty Trust Co. of New YorkCourt of Appeals for the Second Circuit · 1944
- Banque Arabe Et Internationale D'Investissement v. Maryland National BankDistrict Court, S.D. New York · 1994
- Phelan v. Middle States Oil CorporationCourt of Appeals for the Second Circuit · 1946
- Dabney v. Chase Nat. Bank of City of New YorkCourt of Appeals for the Second Circuit · 1952
- Elias v. ClarkeCourt of Appeals for the Second Circuit · 1944
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