Opinion
May 27, 1958
This is an appeal from a judgment and order granting summary judgment in an action to recover the sum of $7,000 and interest, the face amount of a post-dated check. There are no triable issues raised save one. The movant asserts that a check dated August 16, 1956, and payable to cash was delivered and paid as consideration for the negotiable instrument in suit. It is only because it is not as clear as it should be on a motion of this kind whether the check dated August 16 furnished the consideration for the check sued upon, that we do not affirm. While the issue may prove tenuous, we cannot ignore it. The judgment and order at Special Term are reversed on the facts and the law, with costs to the appellant to abide the event, and the motion is denied, with $10 costs.
Concur — Botein, P.J., Breitel, Rabin, Frank and Stevens, JJ.