| N.Y. App. Div. | Apr 6, 1934
The action is on a promissory note, the execution and delivery of which are admitted. The only substantial defense relied on in the answer and in the affidavits submitted in opposition to this motion is that at the time the original loan was made there was an agreement that it should be paid by applyign in reduction thereof seventy-five per cent of the earnings of a Stock Exchange seat purchased by the defendant with the proceeds of the loan. This agreement is not in writing and cannot vary the definite terms of the note in suit which is payable on demand. (Jamestown Business College Assn. v. Allen, 172 N.Y. 291" date_filed="1902-10-21" court="NY" case_name="Jamestown Business College Assn. v. . Allen">172 N. Y. 291; Smith v. Dotterweich, 200 id. 299.)
The written agreement attached to the answer related to an earlier note held by the American Exchange Irving Trust Company and has no application to the note in suit and does not establish the defense relied on herein. There is no triable issue presented and on the admitted facts the order appealed from should be reversed, with twenty dollars costs and disbursements, and the motion granted, with ten dollars costs.
Finch, P. J., Merrell, Glennon and Untermyer, JJ., concur.
Order reversed, with twenty dollars costs and disbursements, and motion granted, with ten dollars costs.