Hydrocarbon Processing Corp., Plaintiff, v. Chemical Bank New York Trust Company, Defendant, 20 A.D.2d 344

Witmer, J. In this controversy submitted under rule 3222 of the Civil Practice Law and Rules (see Civ. Prac. Act, §§ 546-547) plaintiff seeks to recover $2,467.63, the amount of a draft payable to it drawn on Industrial Commercial Premier, S. A. of Amagura 103, Havana, Cuba, hereinafter referred to as Premier, in payment for merchandise sold and shipped by plaintiff to Premier in 1959. At that time plaintiff deposited the draft with defendant for collection.

Defendant, in the usual course of banking business forwarded the draft for collection to Banco Continental Cubano, hereinafter referred to as Banco, a Cuban bank with its principal office in Havana, Cuba. Premier duly paid the amount of the draft to Banco and Banco advised defendant that as soon as it could obtain permission from the Cuban Government to export the said amount, it would do so to defendant. Defendant promptly advised plaintiff thereof. The parties knew that funds in Cuba could not be sent to the Hnited States without permission of the Cuban Government.

Although defendant and Banco duly endeavored to obtain the transfer of said funds for the plaintiff, the Cuban Government never gave authorization to Banco to send them to defendant. In 1958 Cuban Electric Co., hereinafter referred to as Electric, owed $750,000 to defendant. In 1960 the Government of Cuba nationalized Electric and seized all of its assets and assumed its liabilities; and it also nationalized Banco and merged its assets and liabilities with a corporation (Nacional) wholly owned and controlled by the Government of Cuba.

Prior to such nationalization of Banco it had to its credit in Whitney National Bank in New Orleans, Louisiana, hereinafter referred to as Whitney, the sum of $38,607.43. After the nationalization of Banco, Whitney instructed defendant to charge Whitney’s account with defendant with such sum of $38,607.43 and credit Banco therewith at defendant’s branch in London, England, which defendant did. Shortly thereafter defendant’s London branch transferred said credit of $38,607.43 to defendant’s main office in New York, which credited the amount to Nacional on Electric’s indebtedness to defendant.

Plaintiff contends that before defendant could apply said $38,607.43 to Electric’s indebtedness to defendant, it had the duty to pay to plaintiff the amount which Banco had collected from Premier, to wit, $2,467.63. Alternatively, plaintiff contends that defendant had the duty, at least, to let plaintiff share pro rata with defendant on their claims against Banco. Defendant’s duty to plaintiff with respect to the draft was to use ordinary care in forwarding it for collection and to obtain the funds for plaintiff which were paid on account of said draft (Negotiable Instruments Law, §§ 350-a, 350-d, 350-e).

Admittedly, defendant has performed that duty. Admittedly also, had Banco remitted to defendant the funds which it collected on said draft, defendant would then have had a continuing duty in its relationship with plaintiff to credit plaintiff therewith promptly. But this did not happen. What occurred was that other funds of Banco came into defendant’s control and defendant in substance retained them as a bank deposit credit to Banco for 24 days, without notifying plaintiff thereof.

It was only after such 24-day period that defendant decided that, by reason of the nationalization of Banco and Electric, the debt of Electric to defendant could be paid from Banco’s funds; and defendant so applied them. Defendant justifies its conduct by contending that it would be too great a burden upon it or any commercial bank to be required to ascertain in its day-to-day transactions the status of all customer claims against a correspondent bank before it could apply funds of such bank to its own claims against it or to payment of any item to another bank in the regular course of business.

In support of this position it cites cases where, after a promissory note has been protested for insufficient funds, a bank has been permitted to require the indorser to pay it, although after the protest the maker had sufficient funds in his account to pay it (National Bank of Newburgh v. Smith, 66 N. Y. 271; Far Rockaway Bank v. Norton, 186 N.

Y. 484); and eases where a bank has received a draft to collect, and, while in good faith trying to find the drawee to accept it, charged the drawee’s account with his indebtedness to the bank so that when the drawee was found his funds were insufficient to pay the draft, and yet the drawer was held to have no lawful grievance against the bank (Thack v. First Nat. Bank & Trust Co., 206 F. 2d 180; Balsa Ecuador Lbr. Corp. v. Security Nat. Bank, 141 F. Supp. 470, 476).

Assuming, without deciding, that by analogy to the above holdings, defendant would be entitled as against the plaintiff to credit to its own claim against Banco funds coming to it in the daily course of business in payment of Banco’s debt to defendant, that principle doe's not help defendant here, because this is not such a case. Upon collection of the draft, Banco became indebted to plaintiff. Thereafter, as above noted, some of Banco’s funds were on deposit with defendant for 24 days during which time, had plaintiff known thereof, it might have satisfied its claim against Banco therefrom.

These funds were not received by defendant in payment of a debt by Banco to defendant. Although defendant was not a fiduciary for plaintiff and did not become liable to plaintiff for the amount of the draft upon receipt of the Banco funds, it had a continuing agency duty to plaintiff in the exercise of ordinary care as a collecting bank (Negotiable Instruments Law, § 350-

d) to advise plaintiff promptly that funds of Banco were in its possession available for plaintiff. This duty it failed to discharge; but, instead, while holding the funds of Banco for such period and continuing to withhold the performance of its duty to plaintiff, it concluded that the funds were properly applicable to Electric’s debt to defendant.

The requirement that under the circumstances defendant should give notice to plaintiff of the availability of the Banco funds, cannot be said to endanger the facile conduct of ordinary banking business; and the need for the latter may not be used as a cloak to permit a bank, in a dominant position, to delay notice for such an extended period and then to prefer itself to the exclusion and detriment of its principal, the plaintiff. In the existing posture of this case, we do not deem it appropriate to consider whether under other circumstances plaintiff could only share proratably with defendant in said funds.

We hold, therefore, that to the extent of its claim plaintiff has the prior right in said funds in the hands of defendant.