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Berger v. Milberg

Appellate Division of the Supreme Court of New York, First Department
Oct 5, 1967
28 A.D.2d 978 (N.Y. App. Div. 1967)

Opinion

October 5, 1967


Order entered June 5, 1967, denying plaintiff's motion for summary judgment pursuant to CPLR 3213, unanimously reversed, on the law, with $50 costs and disbursements to the plaintiff-appellant, and the motion granted, without prejudice to the defendant, if so advised, to bring an action based upon the counterclaims alleged in his affidavit. Defendant's defense of a parol agreement that the $100,000 promissory note payable to the order of the plaintiff, bearing interest at 6% and due on demand, did not represent an obligation, but, rather, was intended as a payment on account of an indebtedness from plaintiff to defendant cannot be availed of to vary the definite terms of the instrument. Moreover, the assertions in defendant's affidavit fail to demonstrate the defense to be genuine, bona fide and substantial. ( Leumi Fin. Corp. v. Richter, 24 A.D.2d 855, affd. 17 N.Y.2d 166; Pease Elliman v. 926 Park Ave. Corp., 23 A.D.2d 361.)

Concur — Steuer, J.P., Capozzoli, Tilzer, McNally and Witmer, JJ.


Summaries of

Berger v. Milberg

Appellate Division of the Supreme Court of New York, First Department
Oct 5, 1967
28 A.D.2d 978 (N.Y. App. Div. 1967)
Case details for

Berger v. Milberg

Case Details

Full title:SOL BERGER, Appellant, v. BEN MILBERG, Respondent

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Oct 5, 1967

Citations

28 A.D.2d 978 (N.Y. App. Div. 1967)

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