
    Uridge W. Ford, Plaintiff, v. Thomas F. Reilley, Defendant
    Supreme Court, Nassau County,
    June 8, 1926.
    Judgments — summary judgment— action on promissory note — answer-on information and belief —affidavits show lack of privity of contract between parties and possible defenses to plaintiff's claim — answer defective in not properly pleading defenses — summary judgment under Rules of Civil Practice, rule 113, denied, although answer is defective.
    In an action upon a promissory note, which the defendant had given to a third party, who still holds it, plaintiff is not entitled to summary judgment, although the answer denies the allegations of the complaint upon information and belief, where it appears from the plaintiff’s affidavit that there is no privity of contract | between the parties and from the affidavit of the defendant that there is a want of consideration, and that the plaintiff, contrary to defendant’s express direction, inserted his own name in the note as payee instead of the name of the person to whom the defendant gave the note.
    Although the answer is defective in not properly pleading the defenses, technical (defects in pleading are not available to the moving party upon an application for summary judgment made under rule 113 of the Rules of Civil Practice.
    Motion for summary judgment under rule 113 of the Rules of Civil Practice.
    
      Allen Caruihers, for the plaintiff.
    
      Thomas F. Reilley, defendant in person.
   Hagarty, J.

This is an action upon a promissory note for $2,000. The defendant, who is not a lawyer and appears in person, in his answer denies having any knowledge or information sufficient to form a belief as to the allegations of the complaint. It is the general rule that such an answer by an individual in this kind of a case is insufficient, and the answer would be stricken out and judgment entered in favor of the plaintiff were it not for the facts disclosed by the affidavits submitted both by the plaintiff and the defendant. From the affidavit submitted by the plaintiff, it appears that the person to whom the defendant is indebted is one Bonita Crowe, to whom defendant had previously given his promissory note and who still holds it. Bonita Crowe’s claim was never assigned to the plaintiff, and there was no privity of contract whatsoever growing out of the relations between the plaintiff and the defendant. From the affidavit submitted by the defendant, it appears that, in addition to want of consideration, defendant has a further possible defense to the effect that the plaintiff, wrongfully and contrary to the express direction of the defendant, inserted his own name in the noté as payee instead of the name of Bonita Crowe. Both of the defenses could be set up in an amended answer. Although the answer is defective in not properly pleading defenses, technical defects in the pleading of an adversary are not available to a plaintiff upon an application under this rule [Rule 113] for the entry of summary judgment.” (Curry v. Mackenzie, 239 N. Y. 267, 272.) The answer may be amended, possibly at the trial, but certainly at Special Term, before trial. The motion for summary judgment is denied.  