278 A.D. 685 | N.Y. App. Div. | 1951
Judgment and order unanimously reversed, with costs to the appellant, and the motion for summary judgment denied. Plaintiff, who has full knowledge of the circumstances under which the trade acceptance sued upon was issued, has elected in his motion for summary judgment to rest upon a presumption of consideration without disclosing the facts, as against the lack of knowledge of those required to defend in behalf of the defendant. The question they have raised as to consideration is warranted by the records of defendant corporation and their information as to an accommodation practice between the parties. Regardless of the burden of proof, summary judgment should not be awarded on the limited showing made here. (See Woodmere Academy V. Moslcovoita, 212 App. Div. 457.) Settle order on notice. Present — Peek, P. J., Cohn, Van Voorhis, Shientag and Heffeman, JJ. [See post, p. 765.]
