Opinion
March 8, 1965
In an action on a promissory note instituted by a holder in due course against the corporate defendant, the maker, and the two individual defendants, the indorsers, all the defendants, by permission of the Appellate Term of the Supreme Court, appeal from an order of said court, dated September 18, 1964, which affirmed an order and judgment of the Civil Court of the City of New York, Kings County, entered respectively September 17, 1963 and October 14, 1963, granting plaintiff's motion for summary judgment. Order of the Appellate Term, affirmed, with costs. Plaintiff is a holder in due course of the note, having obtained title thereto for value about January 24, 1963. The defense is that, shortly before the making of the note on January 24, 1963, the payee agreed that, before the maturity of the note on April 24, 1963, it would repair all the defective work it had allegedly done theretofore; that, unless the repairs were thus properly made, the note would not be paid; that plaintiff took the note about January 24, 1963 with the knowledge of this agreement; and that thereafter the payee failed to perform its promise. These facts, even if proved, would not constitute a defense ( Petroleum Acceptance Corp. v. Queen Anne Laundry Serv., 265 App. Div. 692; Eaton v. Laurel Delicatessen Corp., 5 N.Y.2d 1029). With respect to the defense that the transfer of this note to plaintiff constituted a diversion of trust funds, there is no claim or proof that any of the payee's subcontractors or materialmen are unpaid. Beldock, P.J., Ughetta, Rabin, Hopkins and Benjamin, JJ., concur.