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JAMES E. DAVID v. MANUFACTURERS HANOVER TRUST COMPANY (02/05/69)

NEW YORK SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT 1969.NY.40356 <http://www.versuslaw.com>; 298 N.Y.S.2d 847; 59 Misc. 2d 248 February 5, 1969 JAMES E. DAVID, RESPONDENT,v.MANUFACTURERS HANOVER TRUST COMPANY, APPELLANT David v. Manufacturers Hanover Trust Co., 55 Misc. 2d 1080, reversed. Simpson Thacher & Bartlett (Philip E. McCarthy and Henry Landau of counsel), for appellant. Eugene Feldman for respondent. Concur -- Groat, P. J., Margett and Rinaldi, JJ. Author: Per Curiam


David v. Manufacturers Hanover Trust Co., 55 Misc. 2d 1080, reversed.

Concur -- Groat, P. J., Margett and Rinaldi, JJ.

Author: Per Curiam

 The terms set forth in the signature card executed by plaintiff depositor and the statements of account which are referred to therein constituted a valid contract between the said depositor and defendant bank (Krupp v. Franklin Sav. Bank, 255 App. Div. 15; Kalish v. Manufacturers Trust Co., 18 Misc. 2d 958). Accordingly, the clause whereby both parties waive a jury trial must be given effect (Franklin Nat. Bank of L. Is. v. Capobianco, 25 A.D.2d 445; Security Nat. Bank of L. Is. v. Estatio, 29 A.D.2d 887; Bonnie-Lassie Sportswear v. Century Factors, 283 App. Div. 702; Freeman v. Island Discount Corp., 5 A.D.2d 778). The printed matter on the signature card was sufficiently clear to apprise plaintiff of the said waiver (cf. Gardner & North Roofing & Siding Corp. v. Champagne, 55 Misc. 2d 413, modfg. 48 Misc. 2d 716). In our opinion, the agreement is neither unconscionable nor offensive to public policy which imposes no limitation or restriction on the freedom of contract between a bank and its depositors (Gaita v. Windsor Bank, 251 N. Y. 152; Seldowitz v. Manufacturers Trust Co., 34 Misc. 2d 111; Isler v. National Park Bank, 239 N. Y. 462). Although the causes of action sound in tort, they arise from and are connected with the maintenance of the account so as to bring them within the ambit of the provision for jury waiver in "any litigation in which the depositors(s) and the Trust Company shall be adverse parties." (See Bonnie-Lassie Sportswear v. Century Factors, supra ; Freeman v. Island Discount Corp., supra).

contd

[EDIT ]

The order denying motion to transfer action to non-jury calendar should be unanimously reversed without costs, and motion granted.

Order reversed, etc.

Disposition

Order reversed, etc.

19690205

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