
    UNITED STATES v. MAZUR et al.
    No. 468.
    District Court, W. D. New York.
    Feb. 27, 1941.
    
      George L. Grobe, U. S. Atty., and R. Norman Kirchgraber, Asst. U. S. Atty., both of Buffalo, N. Y., for plaintiff.
    Edmund P. Radwan, of Buffalo, N. Y., for defendants.
   KNIGHT, District Judge.

This is a motion for summary judgment in an action brought by the plaintiff upon a promissory note. The face of the note indicates that it was signed by the defendants by mark. Their signatures were witnessed by their son. The plaintiff sues as an assignee from a holder in due course. The defendants in their answer deny that they executed the note in question. This denial is supported by affidavits of the defendants.

The position of the government seems to be that the defendants are attempting to defend this action by showing that the work for which the note was given was improperly done. The defendants’ answer does not attempt to introduce this which is of course no defense. United States v. Bernstein (decided August 5, 1938). The pleadings raise the question whether the defendants did execute the note. This is a question of fact upon which the parties are entitled to a trial. Boerner v. United States, D.C., 26 F.Supp. 769; American Ins. Co. v. Gentile Bros. Co., 5 Cir., 109 F.2d 732; Port of Palm Beach Dist. v. Goethals, 5 Cir., 104 F.2d 706.

The motion for summary judgment is denied. 
      
       No opinion for publication.
     