
    George A. Evalenko, Respondent, v. Robert M. Catts, Appellant.
    (Argued October 1, 1926;
    decided October 19, 1926.)
    
      Bills, notes and checks — pleading — action to recover upon promissory note —• sham defense.
    
    
      Evalenko v. Catts, 215 App. Div. 805, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 23, 1926, unanimously affirming a judgment in favor of plaintiff entered upon an order of Special Term granting a motion to strike out the answer and for summary judgment. The action was to recover upon a promissory note. The answer set up as a defense payment of the note and also a counterclaim based on an agreement alleged to have been made between the parties subsequent to the date of the said note whereby it was claimed that the defendant paid or caused to be paid at the special instance and request of the plaintiff the sum of $232,237.07, leaving a balance due the defendant, after deducting the amount of the note, of $127,006.37, for which an affirmative judgment was demanded. This defense the trial court held to be sham.
    Judgment affirmed, with costs;
    
      Charles B. Coulter and Arnold L. Dams for appellant.
    
      Reuben Tally for respondent.
   no opinion.

Concur: Cardozo, Pound, Crane and Lehman, JJ.

Dissenting: His cock, Ch. J., McLaughlin and Andrews, JJ.  