Opinion
October 12, 1971
In an action to recover on a promissory note, defendant appeals from (1) a judgment of the Supreme Court, Nassau County, entered October 29, 1970 in favor of plaintiff upon said court's granting, in part, of plaintiff's motion for summary judgment in lieu of a complaint (CPLR 3213), and (2) as limited by defendant's brief, from so much of an order of said court dated December 23, 1970 as, upon reargument, adhered to the original decision granting summary judgment. This court has reviewed the order granting summary judgment, dated October 26, 1970. Order dated October 26, 1970 and judgment reversed and order dated December 23, 1970 reversed insofar as appealed from, with one bill of $10 costs and disbursements, and plaintiff's motion for summary judgment denied. In our opinion a question of fact exists as to whether the note formed a part of the partnership transactions between plaintiff, defendant and a third individual, particularly as to the alleged reimbursement agreement whereby one partner was to receive a cash adjustment for any indebtedness incurred by him in the course of personally borrowing funds, for use in the partnership business, over and above the indebtedness incurred by the other partners. In light of this and other questions, the motion for summary judgment should have been denied (cf. Rediscount Corp. of Amer. v. Duke, 34 A.D.2d 898). Hopkins, Acting P.J., Latham, Christ, Brennan and Benjamin, JJ., concur.