Opinion
June 18, 1956
The complaint alleges that on or about January 31, 1955, respondent loaned $7,500 to appellant and another, which was to be repaid on February 14, 1955. In his answer appellant admits that he borrowed certain moneys from the respondent under terms and conditions exhibited by a written instrument. In an affidavit in opposition to respondent's motion for summary judgment, appellant states that the written instrument is a negotiable promissory note payable to respondent's order for $8,000 dated, executed and delivered on January 31, 1955. In his affidavit, appellant also states that he saw a photostatic copy of the note in the possession of respondent's attorney. Appellant's codefendant, against whom the action was severed and then discontinued, submitted an affidavit in opposition to the motion for summary judgment in which she states that she delivered to respondent a negotiable promissory note for $8,000 payable to respondent's order and signed by appellant. No reply affidavit was submitted by respondent or on her behalf. The appeal is from an order insofar as it grants the motion for summary judgment striking out appellant's answer, and from the judgment entered thereon. Order, insofar as appealed from, and judgment entered thereon, reversed, with $10 costs and disbursements, and motion denied, with $10 costs. The affidavits submitted in opposition to the motion raise a triable issue of fact as to the execution and delivery of the note. Since it is claimed by appellant that a negotiable note was given to respondent for the money loaned, this action must await trial so that it may be established by factual proof whether a note was executed and delivered; if so, respondent should be required to produce the note for cancellation or to offer a satisfactory explanation for its nonproduction. ( Yuni v. Herscovitz, 263 App. Div. 270, affd. 289 N.Y. 548; Watkins v. Brooks, 273 A D 753; Goeske v. Taylor, 205 App. Div. 429; 85 A.L.R. 1057; 40 Am. Jur., Payment, § 69.) Nolan, P.J., Murphy, Ughetta, Hallinan and Kleinfeld, JJ., concur.