
    Ph. Wechsler & Son, Inc., Plaintiff, v. Charles Winston, Defendant.
    Supreme Court, Special Term, New York County,
    January 26, 1959.
    
      Richard W. Wallach for plaintiff.
    
      Weisenthal <& Weisenthal for defendant.
   Samuel H. Hofstadter, J.

Plaintiff moves for summary judgment. He sues as the holder of notes indorsed by the defendant. The latter fails completely to support by affidavit the alleged defense that the indorsement was added after delivery of the notes upon a condition which has failed by reason of which the consideration has failed. Since the defendant has not asserted that plaintiff requested his indorsement after delivery of the notes upon any collateral agreement, the statement to that effect in the additional supporting affidavit made by another is incapable of raising a triable issue.

After another action had been instituted and judgment secured against the maker and other indorsers, one of the indorsers caused a third party to make an assignment of a lien to the plaintiff. Such assignment recites that it was given as security only. In addition, it was given in such circumstances that the contents thereof were fully known. It is claimed that such assignment was the consideration of an agreement that no action or further steps would be taken against this defendant and the other indorsers until either a certain property was sold or the assigned claim was liquidated and this, it is claimed, was a new agreement. If that were so, the original claim could not remain as basis for action in any circumstances. Such agreement is either an attempted agreement of settlement or an accord and is not only contrary to the terms of the assignment but is not in writing signed by the plaintiff. The motion is granted awarding judgment to the plaintiff as to the principal sum and directing assessment as to the legal expense.

Settle order.  