Ford v. Hahn

269 A.D. 436, 55 N.Y.S.2d 854

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 15, 1945
• Status: Published

Opinion

Per Curiam.

This action is on a promissory note. Defendant by answer and in his affidavit, though admitting the execution and delivery of the note, disclaims liability on the ground that he had been induced to make and deliver the instrument under a parol agreement “ that said note was to be paid out of the first money which would accrue to defendant as his share of the profits under his agreement with Luria Steel & Trading Corp.” and “ that said note would be paid, if at all, solely and only out of the first moneys which would become due to defendant under his agreement with said Luria Steel & Trading Corp.” If there was such a condition attached to defendant’s liability on the note, it was clearly a condition subsequent. Under well settled law, such an understanding cannot be availed of to vary the unconditional promise appearing on the face of the instrument. (Central Hanover Bank & Trust Co. v. Duffy, 258 N. Y. 600; Jamestown Business College Assn. v. Allen, 172 N. Y. 291; White v. Douglas, 240 App. Div. 530; cf., also, Speier v. Michelson, Appellant, 303 Pa. 66.) The allegations and proof as to the parol agreement do not establish a valid defense. Accordingly, there is no triable issue.

The order denying the motion for summary judgment should be reversed, with $20 costs and disbursements, and the motion should be granted awarding summary judgment to plaintiff in the sum of $2,500, with interest from November 10, 1943.

Martin, P. J., Untermyer, Dore, Cohn and Callahan, JJ., concur.

Order unanimously reversed, with $20 costs and disbursements, and the motion granted awarding summary judgment to plaintiff in the sum of $2,500, with interest from November 10, 1943. Settle order on notice.