
    (December 16, 1938.)
    Maxwell Zabelle, Respondent, v. Milton Gladstone, Appellant.
   Per Curiam.

The affidavits preseirt triable issues of fact as to whether the defendant’s note was delivered in consideration of the payee’s agreement to satisfy or assign to the defendant its judgment against Garsson. Whether the plaintiff acquired the note from a holder in due course likewise presents a question of fact. (Karpas v. Bandler, 218 App. Div. 418.)

The determination of the Appellate Term and the judgment of the Municipal Court should be reversed, with costs to the appellant in this court and in the Appellate Term, and the motion for summary judgment denied. The determination of the Appellate Term affirming the order of the Municipal Court denying the defendant’s motion to implead other parties should be affirmed.

Present — Martin, P. J., O’Malley, Townley, Glennon and Untermyer, JJ.

Determination of the Appellate Term and the judgment of the Municipal Court unanimously reversed, with costs to the appellant in this court and in the Appellate Term, and the motion for summary judgment denied. Determination of the Appellate Term affirming the order of the Municipal Court denying defendant’s motion to implead other parties unanimously affirmed.  