Opinion
April 6, 1939.
Appeal from Supreme Court of New York County.
Milton M. Bergerman of counsel [ Herman Jervis with him on the brief; Rosenberg, Goldmark Colin, attorneys], for the appellant.
I. Maurice Wormser of counsel [ Christian S. Lorentzen with him of the brief; Kelley Connelly, attorneys], for the respondents.
Present — MARTIN, P.J., O'MALLEY, TOWNLEY, COHN and CALLAHAN, JJ.
Plaintiff brought this action to recover the sum of $25,000 from the defendants upon a written instrument of guaranty of the performance of a lease. The execution of the lease and guaranty are admitted, as is the fact of the tenant's default. The amount demanded is not in issue. There are no substantial denials of the allegations of the complaint. The sole question raised is an affirmative defense that the guaranty was without consideration. The theory of this plea is that it is not established that the guaranty was executed before or at the same time as the lease.
The affidavits and exhibits in support of the motion show that the guaranty and lease sued on were delivered as one document. There is no denial of this fact in the opposing affidavit. Consideration for the guaranty was the lease delivered at the same time.
There being nothing to contradict the prima facie case thus made out, the order should be reversed, with twenty dollars costs and disbursements, and the motion granted.
Order unanimously reversed, with twenty dollars costs and disbursements, and motion granted.