Opinion
Argued November 14, 1979
Decided December 13, 1979
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, ROGER J. MINER, J.
John M. Nonna and Evan S. Widlitz for appellant. William C. Rosen and George H. Rosen for respondent.
MEMORANDUM.
The order appealed from and the prior orders brought up for review should be reversed, with costs, and summary judgment dismissing the complaint granted to defendant appellant.
It is undisputed that the note is nonnegotiable and the plaintiff bank took it subject to any defenses the defendant maker could assert. It is also clear that the defendant never received title to the real property and that there was therefore a failure of consideration. On the record there is no predicate for estopping the defendant from asserting the defense of lack of consideration, as the Appellate Division has done. There is no evidence that at the time the note was issued and purchased by the plaintiff, the defendant had made any representations upon which the plaintiff relied. In addition, despite the defendant's relationship to Tatra Realty, Inc., there was no showing that he was privy to any information, in connection with the note or the real property, which was not available to the plaintiff bank at the time it acquired the note. We further note, with respect to the suggestion that the defendant has somehow acted improperly toward the plaintiff because of his relationship and duties to Tatra, that the jury found the defendant was not guilty of any fraud against plaintiff in connection with the transaction.
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur in memorandum.
Order appealed from and orders of the Appellate Division brought up for review reversed, etc.