Opinion
December 10, 1970
Order, Supreme Court, New York County, entered on June 26, 1970, unanimously modified, on the law, to grant plaintiff's motion for summary judgment pursuant to CPLR 3213, with $50 costs and disbursements to plaintiff Horne as against defendant Law Research Service, Inc., and as so modified, the order is affirmed, without costs and without disbursements to any other party. The motion for summary judgment was properly brought by plaintiff pursuant to CPLR 3213, the note in question being "an instrument for the payment of money only". A prima facie case was made out by proof of the note and the failure to make the payments called for by its terms. ( Seaman-Andwall Corp. v. Wright Mach. Corp., 31 A.D.2d 136, 137.) The passing reference in the note to a right of conversion (which was provided for in the separate agreement between the plaintiff and the defendant dated January 25, 1968) does not deprive the note of its basic character as one for the payment of money only. Moreover, at the time the note was placed in litigation the right of conversion had long since expired. The contention that payment on the note was not due by reason of the plaintiff's failure to comply with a certain condition as set forth in the agreement of January 25, 1968 is without merit. Nothing in the note or in the agreement conditioned payment of the note by defendant upon prior compliance by the plaintiff with his obligation to return the subject articles, books and records. Indeed, the note as well as the agreement contemplated that in any event payment would be made no later than two years, i.e., January 25, 1970. With regard to the third-party action we find that triable issues are presented which preclude either a dismissal of the third-party complaint as requested by the Western Union Telegraph Co. or the granting of summary judgment as requested by Law Research Service, Inc. On the record before us it cannot be determined that the third-party defendant is responsible for the damages sought herein, or whether the prior judgment in the breach of contract action between these parties encompassed the claim herein involved.
Concur — McGivern, J.P., Nunez, McNally and Tilzer, JJ.