Opinion
May 4, 1953.
Plaintiff sues to recover on a check given to him as an escrow agent in connection with an assignment of a real estate contract to a corporation not a party to this action. The assignee having been newly incorporated had not yet opened a bank account, and defendant, its president, issued his personal check as part of the consideration for the assignment and afterwards stopped payment on the check. Defendant appeals from an order granting plaintiff's motion for summary judgment and from the judgment entered thereon. Order and judgment reversed, with $10 costs and disbursements, and motion denied, with $10 costs. All instruments including the check were passed simultaneously and thus constituted a single transaction. ( Benedict v. Cowden, 49 N.Y. 396; Manufacturers Trust Co. v. Steinhardt, 265 N.Y. 145.) Defendant's answer and the affidavits submitted in opposition to the motion raise issues of fact which require trial. Nolan, P.J., Carswell, Wenzel, Schmidt and Beldock, JJ., concur.