DiLeo v. Werb

50 A.D.2d 570, 375 N.Y.S.2d 29, 1975 N.Y. App. Div. LEXIS 12329

Opinion

—In an action inter alia to recover amounts due on two promissory notes, plaintiffs appeal from (1) an order of the Supreme Court, Richmond County, dated April 17, 1975, which denied their motion for summary judgment, and (2) a further order of the same court, dated May 29, 1975, which granted defendants’ motion for leave to serve an amended answer. Orders affirmed, with $20 costs and disbursements. The time within which defendants may serve an amended answer is hereby extended until 20 days after entry of the order to be made hereon. We believe that there is a question of fact as to whether the parties entered into a written contract which relieved defendants of personal liability on the notes or whether the parties performed under an oral contract to the same effect (Uniform Commercial Code, §§ 3-119, 3-601; cf. North Side Sav. Bank v Septimus, 33 AD2d 913). In view of the foregoing, we believe that Special Term properly exercised its discretion in permitting defendants to interpose an amended answer. Rabin, Acting P. J., Latham, Cohalan, Margett and Brennan, JJ., concur.