Landesberg v. Bankers Trust Co. — 121 Misc. 117

Majority

p. 117

Josef Landesberg, Doing Business as Josef Landesberg Importing Company, Appellant, v. Bankers Trust Company, Respondent.

Supreme Court, Appellate Term, First Department,

June, 1923.

Headnote

Banks and banking — contract to open credit in Germany during war — failure of bank to fulfill agreement — right of customer to rescind.

The Deutsche Bank on March 18, 1915, agreed with defendant in writing to open .credits for any sum for a named payee upon receipt of some form of notification by defendant. In 1916, while this agreement was still in effect, plaintiff made two deposits 'with defendant upon its agreement 'to open a credit' therefor .with • the Deutsche Bank. The defendant, however,, credited the amount of.said deposits to the Deutsche Bank and wrote it to open credits. The mails, wMch had been seized by the British government, were released in October, 1919’, and though defendant’s letters were delivered to the Deutsche Bank, it, Under compulsion of the German government, not only refused to open a credit for the payee, but took the money and deposited it in an account from which the payee

p. 118

was not allowed to make withdrawals. Held, that defend .nt having fai'ed to do the specific thing it had agreed to do, plaintiff was entitled to rescind the contract and to recover his money back.

Judgment entered upon the dismissal of the complaint upon the merits reversed, with costs, and judgment directed in favor of plaintiff as prayed for in the complaint.

Appeal by plaintiff from judgment of the Municipal Court of the city of New York, borough of Manhattan, second district, dismissing plaintiff’s cause of action on the merits.

Charles Entmacher (Isidore Franlcenberg, of counsel), for appellant.

White & Case (Vermont Hatch, of counsel), for respondent.

Defendant had a written agreement with the Deutsche Bank, whereby the latter agreed to open credits in the Deutsche Bank for any sum, and for the payee herein mentioned, “ under advice,” meaning, of course, upon receipt by the Deutsche Bank of some form of notification from defendant. This writing was dated March 15, 1915. The two deposits were made by plaintiff March 11 and April 22, 1916, at a time when the arrangement of March 15, 1915, was still in effect. What the defendant agreed to do was to open that credit. What the defendant did was to credit the amounts to the Deutsche Bank and write the Deutsche Bank to open credits. Those letters were not “ advices ” until received by the Deutsche Bank. The British government seized the mails. The plaintiff did not rescind, but kept insisting that defendant keep its contract, thus extending defendant’s reasonable time to perform. In October, 1919, the mails were released, and the letters were delivered to the Deutsche Bank. The Deutsche Bank, then, under compulsion of the German government, refused to open a credit for the payee, but took the money and deposited it in an account from which the payee was not allowed to withdraw it. Upon receiving notification of these facts plaintiff rescinded and demanded his money back. What happened after that takes up much space in the record, but it is wholly immaterial. Defendant agreed to do a specific thing, and has not done it. The fact that it adopted the right method has nothing to do with the case. Plaintiff has rescinded for defendant’s failure to perform. Subsequent disputes between the Deutsche Bank and defendant, and the alien property custodian and defendant, do not concern plaintiff.

The judgment must be reversed, with thirty dollars costs, and judgment directed in favor of plaintiff as prayed for in the complaint.

Bijur and Mullan, JJ., concur.

Judgment reversed.