34 A.D.2d 839 | N.Y. App. Div. | 1970
In an action to recover upon a promissory note (the cause against defendants De Joy) and upon a guarantee of payment of the note (the cause against defendants Frazzetta), plaintiff appeals from an order of the Supreme Court, Nassau County, dated January 15, 1969, which denied its motion for summary judgment against defendants Frazzetta. Order reversed, on the law, with $10 costs and disbursements; motion granted; and action remitted for assessment of damages before the trial court without a jury, at a Trial Term, in accordance with CPLR 3212 (subd. [c]). Defendants De Joy, makers of the promissory note, were not served with process. Defendant Louis De Joy is presently in the United States Armed Services. Special Term held that defendants are entitled to the protection afforded by the New York State Soldiers’ and Sailors’ Civil Relief Act (Military Law, art. XIII) and that the benefits thereof may be extended to parties who are secondarily liable (Military Law, § 302); held that plaintiff failed to demonstrate that Louis De Joy’s ability to conduct his