32 A.D.2d 714 | N.Y. App. Div. | 1969
Appeal by the individual defendant from an order of the Supreme Court at Special Term, entered June 27, 1968 in Columbia County, which granted partial summary judgment in favor of plaintiff, and from the judgment entered thereon. On February 10, 1964 the appellant executed a promissory note in favor of the plaintiff for supplies purchased from the plaintiff and used in the appellant’s construction business. On April 15, 1964 the appellant incorporated his business. The plaintiff moved for partial summary judgment based upon the promissory note. The affidavit of appellant in opposition to summary judgment generally asserts that at the time he incorporated his business he and the plaintiff had an understanding that all of his obligations to plaintiff would be taken over upon plaintiff’s books -as obligations of the corporation. The plaintiff by reply affidavit denied any such agreement. The appellant’s attorneys then submitted an affidavit and amended answer (accepted by plaintiff) and in this affidavit and the amended answer the defense of novation is asserted. The amended answer was verified and therein it is stated that the plaintiff and the defendant corporation agreed for a valuable consideration that the corporation “should be substituted * * * as a debtor of the plaintiff for the * * * promissory note in place and instead of this defendant [appellant], and this defendant [appellant] be released from all liability and obligation to this plaintiff ”. -Special Term held that the plaintiff was a holder in due course for value of the note. The present record, however, establishes that plaintiff was only a holder of the note, and as plain