Summary
refusing to enforce a waiver of jury clause where signatory did not read or understand English
Summary of this case from Prosperity Partners, Inc. v. BonillaOpinion
February 20, 1979
In an action on a promissory note, defendant Hung Lin Hu appeals from an order of the Supreme Court, Nassau County, dated March 9, 1978, which granted plaintiff's motion to strike his demand for a jury trial. Order reversed, with $50 costs and disbursements, and motion denied. This is an action on a promissory note which contained a clause under which the signer waived his right to a trial by jury in any action brought on the note. Appellant was sued as a personal guarantor of the note. While he admits having signed the guarantee, he alleges that he does not read or understand English and that the contents of the agreement were misrepresented to him by the individual codefendant and a bank officer. He contends that the note was therefore void as to him (see Pimpinello v. Swift Co., 253 N.Y. 159). Appellant's allegations, if proved, would void the instrument as to him, including the jury waiver clause. In these circumstances, the signer is entitled to a jury trial on the defense of misrepresentation (see, e.g., Federal Housecraft v Faria, 28 Misc.2d 155; International Roofing Corp. v. Van Der Veer, 43 Misc.2d 93; Gardner North Roofing Siding Corp. v Champagne, 55 Misc.2d 413; 4 Weinstein-Korn-Miller, N Y Civ Prac, par 4102.13; cf. Freeman v. Island Discount Corp., 5 A.D.2d 778; James Talcott, Inc. v. Wilson Hosiery Co., 32 A.D.2d 524). We conclude, therefore, that Special Term erred in striking appellant's jury demand. Damiani, J.P., Suozzi, Lazer and Rabin, JJ., concur.