
    Weartex Rubber Company, Plaintiff, v. Mitty H. Goldman et al., Defendants.
    Supreme Court, Appellate Term, First Department,
    April 14, 1924.
    Judgments — summary judgment — action by plaintiff on promissory note made by defendant to another’s order and delivered to plaintiff before maturity for bill of goods — defendant produced receipt on trial showing payment to original holder of note — question of fact as to whether plaintiff is bona fide holder for value — motion by plaintiff for summary judgment denied.
    Summary' judgment for plaintiff in an action on a promissory note should be denied where it appears that the defendant produced a receipt signed by the original holder of the note acknowledging payment in full and setting out the fact that though the note had been lost, the original holder had not delivered or transferred the instrument to any person, for there was presented for the consideration of a jury a question of fact between the plaintiff and the defendant as to whether the plaintiff is a bona fide holder for value.
    Appeal by the defendant Goldman from a judgment and order of the Municipal Court of the city of New York, borough of Manhattan, first district, granting plaintiff’s motion for summary judgment.
    
      
      Samuel H. Golding, for the appellant.
    
      Ludwig M. Wilson, for the respondent.
   Per Curiam.

Plaintiff sues on a promissory note made by appellant to the order of one Lurie, and alleged in plaintiff’s affidavit to have been delivered to it before maturity for a bill of goods sold by it to said Lurie. Against this statement of conclusions without details, appellant presents a receipt signed by Lurie, reading as follows: “ I hereby acknowledge payment in full by Mitty H. Goldman [defendant] of note for $250, dated October 20, 1922, made by Mitty H. Goldman to the order of Max F: Lurie. The original note having been lost, I did not deliver or transfer the note to any person.”

It is clear that there will be a sharp question of fact between plaintiff and defendant as to whether the former is a bona fide holder for value, and defendant has demonstrated that he has good reason to believe that the payee will support his contention. On this issue he is undoubtedly entitled to a trial in the ordinary way.

Judgment and order reversed, with ten dollars costs, and motion denied, with ten dollars costs.

All concur; present, Bijur, McCook and Crain, JJ.

Judgment and order reversed.  