Frequency Electronics, Inc., Plaintiff-appellee, v. National Radio Company, Inc., Defendant,andlouis Lerner, Defendant-appellant, 546 F.2d 497 (2d Cir. 1976)

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US Court of Appeals for the Second Circuit - 546 F.2d 497 (2d Cir. 1976) Argued Nov. 19, 1976. Decided Dec. 9, 1976

Arnold S. Schickler, New York City (Vincenti & Schickler, Jesse A. Epstein, New York City, of counsel), for plaintiff-appellee.

Edwin J. Carr, Boston, Mass. (Rich, May & Bilodeau, Boston, Mass., Willkie, Farr & Gallagher, Chester J. Straub, New York City, Local Counsel), for defendant-appellant.

Before WATERMAN, FRIENDLY and MULLIGAN, Circuit Judges.


This appeal is from a judgment of the United States District Court for the Southern District of New York, entered after a bench trial before Judge Charles L. Brieant, Jr. The trial court determined that a $325,000 note given by plaintiff-appellee Frequency Electronics, Inc., to National Radio Company, Inc., and subsequently acquired by defendant-appellant Lerner was non-enforceable. It also ordered, after finding that Lerner defrauded the appellee, a partial rescission of the transaction in which the note was originally exchanged.

The facts in this case are set forth in the thorough opinion of the trial court which is reported at 422 F. Supp. 609.

We find that Judge Brieant's determination that the appellant Lerner, under the applicable standards of Massachusetts law, defrauded appellee Frequency Electronics, rests on findings of fact supported by the record which we cannot properly characterize as clearly erroneous. The remedy ordered below was a partial rescission of the transaction. In view of this appropriate disposition of the case, we do not reach and do not comment upon Frequency's other claimed defenses to the note and their availability under Article 3 of the Uniform Commercial Code.

The belated motion of the appellant to certify questions to the Supreme Judicial Court of Massachusetts was denied, in our discretion, on the oral argument in this appeal.