Galusha Stove Co. v. Pivnick Construction Co.

132 Misc. 875 | N.Y. Sup. Ct. | 1928

Rodenbeck, J.

The complaint alleges the transfer of the note in question to the plaintiff for value and before maturity. The answer denies the transfer for value and sets up an agreement between the original parties to the note to repair or replace any gas ranges and gas stoves that were not in good condition. On the motion for summary judgment the plaintiff alleges that the note was transferred for value received and without notice of any fact tending to impair or affect the validity thereof. The defendants meet this allegation by the statement that the plaintiff took the note “ with knowledge ” of the claim for any defects. This is a mere conclusion. The basis of the statement, as alleged, is that the plaintiff and the Coalecon Company, Inc., are one and the same, having the same office, and that the defendants “ understand ” that the two companies are one and the same, and that their claim was known by the officials of the plaintiff. These statements are insufficient to raise an issue. The defendants should state the facts showing that the plaintiff was not a holder in due course, so as not to cut off the defenses between the original parties. (Neg. Inst. Law, §§ 91 et seq.) The affidavit of Israel S. Sherman states that he has “ knowledge ” that the plaintiff and the Coalecon Company, Inc., are one and the same, which is a conclusion, the basis for this knowledge being that the plaintiff had bought out the Coalecon Company and that the companies are the same, due to the fact that the stock is owned by the same family. This is not sufficient to show that the corporations are not distinct. The defendants seek to charge the plaintiff with not being a bona fide holder in due course of the note in suit, so that they may interpose an agreement between the original parties to the note and should, when this defense is challenged, show by allegations of facts and not by conclusions of fact or of law that they have a bona fide defense.

Motion for summary judgment granted, and motion to change place of trial denied, with ten dollars costs in each motion.