Seaman-Andwall Corp. v. Wright Mach. Corp.

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: STEUER
• Citation: Seaman-Andwall Corp. v. Wright Mach. Corp., 31 A.D.2d 136, 295 N.Y.S.2d 752 (N.Y. App. Div. 1968)
• Decision Date: 12 December 1968
• Docket Number: S.F. C,SEAMAN-ANDWALL
• Parties: CORPORATION, Plaintiff-Appellant, v. WRIGHT MACHINE CORPORATION, B.ompany, Victor Muscat and Edward Krock, Defendants-Respondents.

Page 752

295 N.Y.S.2d 752

31 A.D.2d 136

SEAMAN-ANDWALL CORPORATION, Plaintiff-Appellant, v. WRIGHT MACHINE CORPORATION, B.S.F. Company, Victor Muscat and Edward Krock, Defendants-Respondents.

Supreme Court, Appellate Division, First Department.

Dec. 12, 1968.

Stanley Geller, New York City, of counsel (William J. Butler and Edward I. Kramer, New York City, with him on the brief, Butler, Jablow & Geller, New York City,), for appellant.

Paul L. Ross, New York City, of counsel (Howard L. Jacobs, New York City, with him on the brief, Wolf, Popper, Ross, Wold & Jones, New York City), for respondents Wright Machine Corp. and B.S.F. Company.

Murray I. Gurfein, New York City, of counsel (Goldstein, Gurfein, Shames & Hyde, New York City), for respondent Victor Muscat.

Before BOTEIN, P.J., and STEVENS, EAGER, STEUER and CAPOZZOLI, JJ.

STEUER, Justice.

Plaintiff moves for summary judgment pursuant to CPLR 3213. The relevant portion of the section reads as follows:

'When an action is based upon a judgment or instrument for the payment of money only, the plaintiff may serve with the summons a notice of motion for summary judgment and the supporting papers in lieu of a complaint.'

The summons was accompanied by a notice of motion supported by an affidavit stating that suit was brought on a promissory note a copy of which was attached. Due execution of the note and the circumstances under which it was given are set out. The latter are that plaintiff sold its business to the corporate defendant and the note (described as a mortgage note) was a part of the consideration. The note itself calls for payment in installments with an acceleration clause in case of default. The affidavit alleges a default in payment and notification to defendants that the entire principal was declared due.

The first question presented is whether this is an action on an instrument for the payment of a sum of money only. We are quite clear that it is. Special Term was of the opinion that, as the note was given as one factor in a transaction embracing other features, proof dehors the instrument must be given. This is not so. It is incontestable that plaintiff would prove a prime facie case by proof of the note and a failure to make the payments called for by its terms. While defenses advanced might raise issues outside the note, that does not change its character as one for the payment of money only. There is nothing in CPLR 3213 which limits its application to notes to which defenses based on extrinsic facts have not been asserted. Even despite such issues, the note itself requires the defendants to make certain payments and nothing else. As such it is an instrument for the payment of money only.

It appearing that plaintiff's procedure is correct, we now come to the question of whether plaintiff is, on the record, entitled to summary judgment. Execution and default having been conceded, it was incumbent on defendants to come forward with evidentiary proof sufficient to raise an issue as to the defenses. The proof tendered is fatally deficient both as to form and substance. It appears that defendant Wright Machine Corporation brought suit against plaintiff to rescind the sales agreement and for fraud. This action was consolidated with the instant one. Defendants submit an affidavit of their attorney who is without knowledge of the facts; nor does he purport to allege any. ^* The affidavit merely recites what is in the complaint in the rescission action. In addition, the affidavit of one Muscat appears and states that he has knowledge of the facts and that what the attorney avers is true. Muscat also verified the complaint, but he did so entirely on information and belief.

Whether the above is to be treated as a clumsy failure to set forth evidentiary facts rather than as a studied effort to avoid the pains of possible perjury, the result is the same. Giving credence to the facts alleged, as distinct from the conclusions of the pleader, no evidentiary facts entitling the defendants to...