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H. SCHULTZ & SONS v. BANK OF SUFFOLK CTY.

October 19, 1977

H. SCHULTZ & SONS, INC., Plaintiff,
v.
BANK OF SUFFOLK COUNTY, Defendant



The opinion of the court was delivered by: PRATT

MEMORANDUM AND ORDER

 GEORGE C. PRATT, District Judge.

 Plaintiff H. Schultz & Sons, Inc. is incorporated and maintains its principal place of business in New Jersey. Defendant Suffolk County Bank is incorporated and maintains its principal place of business in New York. Plaintiff brought this diversity action to obtain the $40,000 face value of a check which was drawn to plaintiff by Unishops, Inc. on an account maintained by Unishops at the defendant bank, and which plaintiff alleges was wrongfully dishonored after the bank learned of Unishops' bankruptcy. Jurisdiction therefore lies under 28 U.S.C. § 1332.

 Now before the court are cross-motions for summary judgment originally made in January, 1976. At the request of counsel, argument of the motions was deferred until April, 1977. For the reasons set forth below, plaintiff's motion is granted, and defendant's is denied.

 FACTS

 There is no dispute over the essential facts. For purposes of these motions the parties have agreed that the following facts are true:

 1. The $40,000 check was dated November 26, 1973 and drawn by Unishops on its account at defendant's bank, payable to the order of plaintiff. Parties' 9(g) statement.

 2. Plaintiff deposited the check for collection on November 27, 1973 in its account at Fidelity Union Trust Co. of Newark, New Jersey. Id.

 3. Fidelity forwarded the check to the Federal Reserve Bank of New York, which in turn forwarded the check to defendant. Id.

 4. Defendant received the check on November 29, 1973. Stipulated upon oral argument.

 5. On the same day, November 29, 1973, the check was photographed, "proven", and debited to Unishops' account by defendant. Id.

 6. Defendant learned of Unishops' bankruptcy on November 30, 1973 and on that same day gave telephone notice of dishonor of the check to the Federal Reserve Bank. Parties' 9(g) statements.

 7. If defendant had not subsequently learned of Unishops' bankruptcy, no additional processing of the check would have taken place prior to the sending out of Unishops' ...


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