Moran v. Van Dyk

The written guaranty upon which, defendant is sought to be held was, by its terms, revocable at the will of the defendant. His defense that his revocation became effective before any liability arose under the terms of the guaranty has ample support in the affidavits submitted in opposition to plaintiff’s motion for summary judgment. The supporting proof shows that the revocation was by letter duly and timely mailed. Presumption of its receipt in due course by plaintiff’s assignor is not overcome as a matter of law by mere denial thereof. An issue of fact requiring submission to a jury is presented.

It follows that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Finch, P. J., Merrell, Sherman and Townley, JJ., concur.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.