Opinion
February 7, 1936.
Appeal from Supreme Court of Bronx County.
Arthur C. Parker of counsel [ Monroe Goldwater with him on the brief; Goldwater Flynn, attorneys], for the appellant.
Henry Duke of counsel [ Samuel A. Brander, attorney], for the respondent.
Present — MARTIN, P.J., TOWNLEY, GLENNON, UNTERMYER and DORE, JJ.
We are of opinion that the complaint sufficiently alleges a cause of action for damages resulting from the defendant's willful refusal to honor the plaintiff's check. Such a refusal would entitle the jury to award general damages. ( Wildenberger v. Ridgewood National Bank, 230 N.Y. 425.) In order to recover, however, for the special damages alleged in those paragraphs of the complaint which the defendant has moved to strike out as immaterial it is necessary for the plaintiff to allege and establish that the defendant had actual or constructive knowledge of the consequences reasonably to be expected from the non-payment of the check. Such knowledge cannot be inferred merely from the fact that the check was payable to an insurance company.
The motion to dismiss the complaint should accordingly be denied. The motion to strike out paragraphs "first," "second," "third," "seventh," "eleventh," "twelfth" and "thirteenth" of the amended complaint should be granted.
The order appealed from should be modified accordingly, and as so modified affirmed, with twenty dollars costs and disbursements to the appellant, with leave to the plaintiff to serve a new amended complaint within twenty days from service of order, upon payment of said costs.
Order modified by denying motion to dismiss the complaint, and granting the motion to strike out paragraphs "first," "second," "third," "seventh," "eleventh," "twelfth" and "thirteenth" of the amended complaint, and as so modified affirmed with twenty dollars costs and disbursements to the appellant, with leave to the plaintiff to serve a new amended complaint within twenty days after service of order, upon payment of said costs.