
    B. Frank Witmer, Appellant, v. Henry Hering, Respondent.
    First Department,
    April 11, 1930.
    
      Frederic R. Sanborn of counsel [Putney, Twombly & Putney, attorneys], for the appellant.
    
      Alfred L. Marilley, for the respondent.
   McAvoy, J.

The action is to recover the balance due upon a promissory note for $10,400 and interest, and costs of collection. The note was made in Florida and contains a clause agreeing to pay reasonable attorney’s fees.

It is conceded by the defendant that he made and delivered the note; that Dixie Land Corporation indorsed the note for value and transferred it before maturity to plaintiff herein and one Gallagher; that the consideration for the transfer was $400 cash, and debts due from the corporation to the plaintiff which were released thereon.

Respondent asserts that there are four issues of fact raised by' his defenses: (1) As to the indorsement of the note and its transfer to appellant; (2) as to its ownership by appellant; (3) as to. the amount of attorney’s collection fee; and (4) as to the affirmative defense.

The first issue of fact has been disposed of by concession made by the respondent.

We consider the proof by the affidavits of plaintiff’s affiants and lack of controversy in defendant’s opposing averments sufficient to dispel these alleged issues excepting in so far as attorney’s fees are concerned, and, therefore, hold that the motion for summary judgment should have been granted upon a waiver of such fees from the sum of judgment.

The order should be reversed, with ten dollars costs and disbursements, the answer of the defendant should be stricken out and judgment should be entered herein in favor of the plaintiff for the relief demanded in the amended complaint, excepting the ten per cent allowance for attorney’s fee which appellant agreed to waive.

Dowling, P. J., Merrell, O’Malley and Sherman, JJ., concur.

Order reversed, with ten dollars costs and disbursements, the answer of the defendant stricken out and judgment directed to be entered in favor of plaintiff for the relief demanded in the amended complaint, excepting the ten per cent allowance for attorney’s fee. Settle order on notice.  