125 Misc. 726 | N.Y. Sup. Ct. | 1925
. The action is brought on a promissory note for the sum of $50,000, the only one of a series remaining unpaid and which was dated the 26th day of June, 1922, payable one year thereafter, and made and delivered by the defendant to the plaintiff. The answer admits the execution and delivery but sets up as an affirmative defense payment of the note and also a counterclaim based on an agreement alleged to have been made between the parties subsequent to the date of the said note whereby it is claimed that the defendant paid or caused to be paid at the special instance and request of the plaintiff the sum of $232,237.07, leaving a balance due the defendant, after deducting the amount of the note, of $127,006.37, for which an affirmative judgment is demanded. This defense seems to me to be purely sham and frivolous and interposed solely for the purpose of delay, and is squarely contradicted by the documents submitted in support of this motion.
The defendant in his bill of particulars of the counterclaim
Furthermore, there is no proof that the defendant made any
Moreover, on the 10th day of June, 1924, almost a year after the agreement set forth in defendant’s counterclaim was alleged to have been made and at a time when practically all the moneys had been advanced by'the Merchants and Manufacturers Exchange, the defendant paid the plaintiff the sum of $5,000 and subsequently a further sum of $20,000, both on account of the notes then remaining unpaid, and the defendant in his affidavit does not even venture to deny that these payments were actually so made. These facts are not> only not consonant with the defense we are considering, but entirely repugnant thereto. The issue thus sought to be presented is not genuine but feigned. (Curry v. Mackenzie, 239 N. Y. 267; Gen. Investment Co. v. Interborough R. T. Co., 235 id. 133.) There has been a complete failure on the part of the defendant to satisfy this court by affidavit or other proof that there is any issue requiring a trial. Therefore, the motion for summary judgment must be granted, with ten dollars costs. The promissory note sued upon and marked in evidence is directed to be deposited with the county clerk pursuant to rule 3 of the Special Term Rules. Settle order on two days’ notice.