41 A.D.2d 159 | N.Y. App. Div. | 1973
This is an appeal from an order of the Supreme Court at Special Term, entered June 23, 1972 in Montgomery County, which granted a motion by plaintiff for summary judgment against each defendant.
On June 14, 1971, defendant Bart Boat Company, Inc., by A. Albert Versaci, president, signed and delivered its promissory note in writing to the order of plaintiff in the amount of $50,000 with interest ,at 8%%, said note being due and payable on September 14, 1971. The note was secured by a pledge of all of Bart Boat Company’s present and future inventory, equipment, and accounts receivable. Prior to the execution of this note and in conjunction with an earlier note which was renéwed by the $50,000 note here in question, defendant Versaci executed and delivered his personal guarantee of all loans made by the plaintiff to defendant Bart Boat Company. By
Defendants’ contention that there are triable issues of fact which preclude the granting of summary judgment is based on the existence of an alleged oral agreement of August 20, 1971, whereby plaintiff agreed that if defendants would make an advance payment on the $50,000 note, then plaintiff would issue another note, requiring no principal payments until July, 1972, and would release defendants from all liability under the original note. Although plaintiff did, on two occasions, send a renewal note to defendants, this note was signed and accepted only after plaintiff had revoked its offer of renewal and demanded payment of the original note. Consequently, there being no written agreement between the parties, the only defense
Defendants’ further contention that a hearing should have been conducted to determine whether 15% attorneys’ fees were reasonable is likewise without merit, and such fees were properly granted (Messina v. Tannenbaum, 37 A D 2d 1041).
The order should be affirmed, without costs.
Herlihy, P. J., Staley; Jr., Kane and Main, JJ., concur.
Order affirmed, without costs.