Opinion
March 8, 1971
In this action to recover upon a promissory note, plaintiff appeals from an order of the Supreme Court, Westchester County, dated November 18, 1969, which denied her motion for summary judgment in lieu of a complaint (CPLR 3213). Order reversed, on the law, with $20 costs and disbursements, and motion granted. Defendants executed and delivered to plaintiff's intestate their promissory note for $2,500 in consideration of a loan in that amount. Defendant Merritt Baird is the decedent's brother; defendant Josephine Baird is her sister-in-law. The note provides for repayment of the principal on or before October 29, 1964, and for payment of interest semiannually at the rate of 2% per annum. Plaintiff, in her affidavit in support of the motion, averred that there is owing on the note the principal of $2,500 with interest from October 29, 1959, and that there is no defense to the action. In opposition, defendant Merritt Baird averred, as defendants' sole defense, that prior to the decedent's death in February, 1962, he paid $1,000 in cash to her, which she accepted as full payment and discharge of defendants' obligation on the note. No claim has been asserted of any writings confirmatory in any respect of this alleged defense. Since defendant Merritt Baird's testimony to support this alleged defense would not be admissible at the trial, by virtue of CPLR 4519, and the record indicates that this incompetent testimony is the only evidence supportive of the alleged defense, the motion should have been granted ( Lombardi v. First Nat. Bank of Hancock, 23 A.D.2d 713). Raybin v. Raybin ( 15 A.D.2d 679), referred to in Lombardi ( supra), is distinguishable from the situation here. In Raybin, the affidavits in opposition to the motion disclosed that the defendant could introduce competent evidence which, if believed, might justify judgment for him. Here, the record indicates that the only evidence which defendants might introduce at the trial would be incompetent and insufficient to defeat judgment for plaintiff. Rabin, P.J., Martuscello, Shapiro, Christ and Brennan, JJ., concur.