Opinion
November 15, 1991
Appeal from the Supreme Court, Onondaga County, Miller, J.
Present — Callahan, A.P.J., Boomer, Pine, Balio and Lawton, JJ.
Order unanimously affirmed without costs. Memorandum: On April 7, 1989, the parties herein entered into a complex transaction concerning the transfer of assets and the refinancing of debt. Plaintiff brought a motion for summary judgment in lieu of complaint, claiming monies due under three promissory notes, and defendants cross-moved for summary judgment rescinding the parties' agreement. The determination of plaintiff's claim is controlled, as agreed upon by the parties in the notes, by Illinois law. Supreme Court denied the motions, and the parties cross-appeal. We affirm.
In the circumstances of this case, the notes must be read together with and in reference to the contemporaneous agreements executed among the parties (see, Magnuson v. Schaider, 183 Ill. App.3d 344, 357, 364, 538 N.E.2d 1309, 1318, 1322; see also, Ill Rev Stat ch 26, ¶ 3-119 [1]). Defendants allege that plaintiff has breached those agreements. If those allegations, made upon personal knowledge, are substantiated, defendants would have a defense to plaintiff's claim premised on the failure of consideration (see, Schwaner v. Belvidere Med. Bldg. Partnership, 155 Ill. App.3d 976, 985-986, 508 N.E.2d 522, 528; First Natl. Bank v. Chapman, 51 Ill. App.3d 738, 740, 366 N.E.2d 937, 940). Accordingly, plaintiff is not entitled to judgment as a matter of law.
We have examined the issue raised by defendants' cross appeal, which is governed by New York law, and find it to be without merit (see, Rudman v. Cowles Communications, 30 N.Y.2d 1, 13-14).