Master Contracting Corp. v. Sherman

283 A.D. 674, 127 N.Y.S.2d 441, 1954 N.Y. App. Div. LEXIS 4863

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 25, 1954
• Status: Published

Opinion

Appeal by defendant from an order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion to consolidate this action brought by the payee against an irregular accommodation indorser of notes with another action brought by the payee against the maker, and from the judgment entered thereon. Order and judgment reversed on the law, with $10 costs and disbursements, and motion for summary judgment denied, without costs, and motion for consolidation granted, without costs. The affidavits in opposition to the motion for summary judgment set forth facts from which it could be found that the appellant indorsed the notes pursuant to an agreement made by appellant and the authorized agent for the respondent whereby appellant’s liability was to be limited to the difference between the total of the notes and the cost of work which the respondent agreed to perform. It cannot be said as matter of law that the renewal of the note due on October 1, 1952, constituted a waiver of any defense or right of offset. There is no denial of the allegations in the affidavits in opposition to the motion for summary judgment that promises had been made to make adjustments on the last note. Where, as here, separate actions have been brought by the payee against the maker and an accommodation indorser, the interests of justice require that the actions should be consolidated so that the equities of all the original parties may be determined. (Gillespie v. Torrance, 25 N. Y. 306; City of New York V. Fidelity & Deposit Go. of Maryland, 253 App. Div. 676; Psaty é Fuhrman, Inc., V. Continental Cas. Co., 278 App. Div. 159.) Nolan, P. J., Wenzel, MaeCrate, Schmidt and Beldock, JJ., concur.