Strassburger v. Irving Trust Co. ( 1941 )

Dore, J.

(dissenting). The first cause of action does more than merely state as a general conclusion that defendant acted in bad faith. It also alleges numerous facts which sufficiently raise a factual issue. A pledgee acting under power of sale is bound to exercise good faith and execute the power with due regard to the pledgor’s rights and interests. (Toplitz v. Bauer, 161 N. Y. 325, 332.)

With regard to the second cause of action, the first answer to defendant’s contention is that the complaint alleges that the waivers in question were both oral and in writing. In any event, Beatty v. Guggenheim Exploration Co. (225 N. Y. 380) held that parties who created their own statute of frauds could, acting as their own legislature, waive it. Nor is the second cause of action barred by the Statute of Limitations, for the operative facts on which any alleged liability can ultimately be based were sufficiently alleged in the original complaint.

The order, so far as appealed from, should be affirmed.