Opinion
December 16, 1938.
Appeal from Appellate Division, First Department.
Present — Martin, P.J., O'Malley, Townley, Glennon and Untermyer, JJ.
The order of November 10, 1937, denied defendant's motion for an order for the issuance of a supplemental summons impleading certain codefendants under section 193 of the Civil Practice Act and for the service of an amended answer setting forth defendant's claim against such codefendants as the result of an alleged agreement for the purchase of a certain judgment against one Garsson through the promissory note of the defendant now sued upon herein by the plaintiff assignee.
The order of November 15, 1937, granted plaintiff's motion for summary judgment against the defendant and the judgment was entered pursuant to said order.
The affidavits present triable issues of fact as to whether the defendant's note was delivered in consideration of the payee's agreement to satisfy or assign to the defendant its judgment against Garsson. Whether the plaintiff acquired the note from a holder in due course likewise presents a question of fact. ( Karpas v. Bandler, 218 App. Div. 418.)
The determination of the Appellate Term and the judgment of the Municipal Court should be reversed, with costs to the appellant in this court and in the Appellate Term, and the motion for summary judgment denied. The determination of the Appellate Term affirming the order of the Municipal Court denying the defendant's motion to implead other parties should be affirmed.
Determination of the Appellate Term and the judgment of the Municipal Court unanimously reversed, with costs to the appellant in this court and in the Appellate Term, and the motion for summary judgment denied. Determination of the Appellate Term affirming the order of the Municipal Court denying defendant's motion to implead other parties unanimously affirmed.