J. D. Spencer Co. v. New York Review, Inc.

282 A.D. 659, 122 N.Y.S.2d 161

Opinions

Appeal from an order of the Supreme Court at Special Term, entered December 18, 1952, in New York County, which denied a motion by plaintiff for summary judgment under rule 113 of the Rules of Civil Practice.

Memorandum bt the Court. The order appealed should be affirmed, with costs to defendants-respondents, on the ground there are issues of fact to be tried including the basic issue as to whether the documents in question were procured by fraudulent representations. This should be pleaded as a separate defense. If such defense is sustained, the indorsement on the note and the guarantee were procured by fraud and they have no validity. To determine these and other issues, a trial is essential.