78 A.D.2d 764 | N.Y. App. Div. | 1980
Order and judgment unanimously affirmed, with costs. Memorandum: Defendants appeal from an order and judgment granting plaintiff summary judgment for $5,291.95 (plus costs and interest) due on a promissory note executed by defendants wherein they promised to pay plaintiff $6,463.08 in monthly installments commencing March 15, 1979 as repayment of an unsecured loan. Defendants concede execution and delivery of the note. The note went into default when the third payment was not made and plaintiff declared the entire balance due pursuant to the terms of the note. The sole defense is that plaintiff orally agreed to look solely to the third-party defendant Joe Mitchell Lincoln-Mercury, Inc. (Mitchell) for payment under the note and to release defendants from their obligation thereunder. As proof of the alleged agreement, defendant Bagliore avers that soon after executing the note, he entered into a contract with Mitchell on March 29, 1979, in which he transferred his Lincoln Continental automobile to Mitchell and Mitchell agreed to assume all obligations under the note. Mitchell ultimately made only two payments. After receiving a written notice that the first payment was overdue, defendant Bagliore tele