
    Sarah Walteter, Respondent, v. Morris Berman, Appellant, and Morris Kradel, Defendant.
    Supreme Court, Appellate Term, First Department,
    February 5, 1926.
    Judgments — summary judgment — defendants entitled to trial where pleadings and affidavits present issue of fact.
    In an action upon a promissory note, it was error for the trial court to grant plaintiff’s motion for summary judgment, where the pleadings and affidavits present an issue of fact entitling defendants to the trial of the question as to whether or not plaintiff was an owner in due course; on a motion for summary judgment the court is limited to ascertaining whether an issue of fact is raised.
    
      Appeal by defendant Berman from an order of the Municipal Court, Borough of Manhattan, Second District.
    
      Harris Koppelman, for the appellant.
   Per Curiam.

The pleadings and affidavits disclose that an issue of fact was presented, namely, whether the plaintiff was an owner in due course or not. The defendant was, therefore, entitled to a trial of such issue and the court’s disposition upon affidavits was unwarranted. On a motion of this character the function of the court is limited to ascertaining whether an issue is raised, and it has no right or authority to decide an issue of fact if existing. Judgment and order reversed, with ten dollars costs to appellant to abide the event.

All concur; present, Bijur, Delehanty and Wagner, JJ.  