117 Misc. 567 | N.Y. Sup. Ct. | 1921
The plaintiff applies for summary judgment under rule 113 of the Rules of Civil Practice. The action is brought against the makers of a promissory note. The defendants have interposed an answer in and by which they deny certain material allegations of the complaint, that on or about the 25th day of May, 1921, the plaintiff, at the request of Lee Dubois, and for value received discounted the note in the usual course of its business and thereupon became and still is the owner and holder thereof. An affidavit is also filed in behalf of defendants in and by which alleged statements are made which the defendants contend show facts sufficient to entitle them to defend the action.
While the complaint may be entirely sufficient for a recovery by the plaintiff as a holder in due course under section 91 of the Negotiable Instruments Law, yet it nowhere appears in the complaint, or in the affidavit filed in behalf of plaintiff for judgment, who was the payee of the note or that it was transferred by indorsement, nor is it stated that the plaintiff took the note in good faith and for value or that at the time it Avas negotiated the plaintiff had no notice of any infirmity in the instrúment or defect in the title of the person negotiating it. Where an instrument is transferred without the indorsement of the payee, a transferee cannot be a holder in due course until the indorsement is placed on the instrument. Neg. Inst. Law, § 79. Neither the note nor a copy is presented to the court on this application. The affidavit submitted does state, in the 6th folio: “ That the said promissory note AAras taken and received by the plaintiff in the ordinary and usual course of its business prior to maturity and the plaintiff is the owner and holder of said note in due course.” This, as already stated, may be sufficient for a pleading, but in an affidavit for a summary judgment Avhere a defense has been interposed of the nature here pleaded, I believe further facts should affirmatively appear giving the name of the payee, Avhether the note was indorsed and discounted in good faith, the time of discounting, the value paid therefor and that it was received by the present alleged owner and holder thereof without
The question is not whether an alleged cause of action is set forth in the complaint and in the affidavit submitted, but whether the defendants have not shown facts overcoming those claimed by plaintiff which the judge hearing the motion deems sufficient to entitle them to defend.
Taking all the facts and circumstances into consideration as shown by the affidavits, and the deficiencies of the affidavit presented in plaintiff’s behalf, I believe the defendants are entitled to defend this action.
The motion is denied, with ten dollars costs.