Bankers Trust Co. v. Kline ( 1978 )

Order, Supreme Court, New York County, entered March 22, 1977, denying plaintiff-appellant’s motion to dismiss certain defenses and counterclaims and for summary judgment on the complaint, unanimously reversed, on the law, to the extent appealed from, and the motion of plaintiff-appellant granted to the extent of directing summary judgment to plaintiff-appellant on liability only, and remanding the matter for assessment as to the amount of the judgment to be entered in favor of plaintiff-appellant against defendants-respondents, with $60 costs and disbursements of this appeal to plaintiff-appellant. Plaintiff bank loaned money to a corporation called First United Investment Company, the creature of and controlled by defendant-respondent Sam Kline, a real estate developer, who engineered the loan and, in consideration thereof, procured and brought to plaintiff the written unconditional guarantees of payment executed by all the defendants, including himself. After installment payments on the loan had been made for some time, and the corporation, fallen upon bad times, could not continue to pay, Kline, by means of a transaction favorable to one of plaintiff’s employees, in effect bribed him to insure a favorable credit rating, thus postponing the day of reckoning. Eventually, the corporation defaulted and plaintiff sued the guarantors. The defense interposed rests upon the fraud committed by plaintiff’s employee, without plaintiff’s knowledge, on his employer, and it is even hinted that plaintiff, by granting the corporate debtor a loan, had warranted its credit, thereby inducing defendants, to their detriment, to execute the guarantees. No further comment is required. We find no issue of fact as to the liability of defendants on the guarantee. There is, however, an issue as to the amount owing on the loan, there being a dispute as to the amount actually paid. This may be resolved at the assessment we order. Concur—Lupiano, J. P., Lane, Markewich and Sandler, JJ.