
    Isabelle M. Niles, Respondent, v. Frederick Seeler, Appellant.
    (Argued May 11, 1925;
    decided June 2, 1925.)
    
      Practice — summary judgment — when answer and affidavit clearly ;present issue motion for summary judgment should he denied.
    
    Where defendant’s answer and affidavits upon a motion for summary judgment clearly present the issue whether there was any consideration for a note involved in the action, the issue should be tried in the ordinary manner and not disposed of by a summary judgment.
    
      Niles v. Seeler, 209 App. Div. 867, reversed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 27, 1924, which affirmed a judgment in favor of plaintiff entered upon an order of Special Term, striking out defendant’s answer and granting a motion for summary judgment.
    
      Milton R. Weinberger and William Klein for appellant.
    
      Joseph Walker Magrauth and Arthur F. Driscoll for respondent.
   Per Curiam.

The defendant’s answer and his affidavits produced upon the motion for summary judgment clearly present the issue whether there was any consideration for the note involved in this action.

Of course this was a substantial issue which defendant was entitled to have tried in the ordinary manner and which should not have been disposed of by a summary judgment. (Gravenhorst v. Zimmerman, 236 N. Y. 22, 38, 39; General Investment Co. v. Interborough Rap. Trans. Co., 235 N. Y. 133.)

The judgments should be reversed, with costs in all courts, and the motion for summary judgment denied, with. costs.

Hiscock, Ch. J., Cardozo, McLaughlin, Crane Andrews and Lehman, JJ., concur; Pound, J., absent.

Judgments reversed, etc.  