
    Margaret Dannemann, as Administratrix, etc., of August Dannemann, Deceased, Respondent, v. S. Ellsworth J. White, Appellant.
   Action for $3,000 based on two promissory notes with an answer interposed averring that the notes were the subject of a gift by the plaintiff’s decedent to the defendant. Order granting plaintiff’s motion for summary judgment under rule 113 and judgment entered thereon reversed on the law and the facts, with ten dollars costs and disbursements, and the motion denied. There is an issue of fact with reference to the defense on which a trial should be had. The claims of the defendant’s witnesses with reference to that issue should not be disposed of on affidavits, under the rule set out in Matter of Case (214 N. Y. 199, 203), on the ground that their testimony is incredible as a matter of law. That rule is more pertinent in its application to the situation that is disclosed after the testimony is adduced and the witnesses subjected to cross-examination. Lazansky, P. J., Young, Hagarty, Carswell and Tompkins, JJ., concur.  