Cranesville Block Co. v. Pentagon Construction Co.

Appeal from an order of the Supreme Court at Special Term, entered January 3, 1975 in Fulton County, which denied plaintiffs motion for summary judgment. On June 19, 1972, defendant Pentagon Construction Company executed a demand promissory note to the State Bank of Albany in the sum of $51,000 and said note was guaranteed for payment by defendants Bursese, Marcellino and Sager. As collateral security for the loan, plaintiff posted a certificate of deposit in the sum of $52,000 and thereafter some payments were made on the note. On July 3, 1974 and September 3, 1974, according to plaintiff, the State Bank of Albany made demand for payment of the note, but none was forthcoming, and it subsequently assigned the note to plaintiff on September 16, 1974. At the time of the assignment, $35,259.24 remained to be paid on the note, and *611in this motion for summary judgment plaintiff seeks to recover that amount plus interest from July 9, 1974. We agree with Special Term’s denial of the motion for summary judgment. On this record, a question of fact is presented as to whether or not plaintiff is a holder in due course of the note, and, if it is not, various defenses are asserted, such as want of consideration, which would defeat the claim of one not a holder in due course (Uniform Commercial Code, § 3-306). Moreover, defendants Marcellino and Sager allege fraud in the factum, a defense effective even against a holder in due course (Uniform Commercial Code, § 3-305, subd [2] par [c]; Anderson, Uniform Commercial Code [2d ed], p 851, n 7). In our view, these questions present material issues of fact which mandate a trial (cf. McAbee v Keen, 21 AD2d 740; Rafkin v Continental Diamond Mines, 19 AD2d 615). Order affirmed, with costs. Herlihy, P. J„ Greenblott, Koreman, Main and Reynolds, JJ., concur.