Opinion
November 20, 1961
In an action by plaintiff corporation on a promissory note made by defendants Zoller Building Corporation, Nessel and Frank, in which said three defendants interposed an answer wherein they admitted their execution and nonpayment of the note, and as permitted by section 271 of the Civil Practice Act, asserted a counterclaim against the plaintiff corporation and against one not then a party to the action, to wit, Bernard Weisinger, plaintiff's president, based on his fraudulent representations in inducing them to make the note, the defendants appeal: (1) from an order and judgment (one paper) of the Supreme Court, Queens County, dated January 6, 1961, which granted plaintiff's motion for summary judgment pursuant to rule 113 of the Rules of Civil Practice, dismissed defendants' counterclaim against plaintiff, denied defendants' cross motion for summary judgment against plaintiff, and awarded judgment against defendants in favor of plaintiff for the amount of the note with interest and costs; and (2) from another order and judgment (one paper) of said court, dated the same day, which granted the motion of the impleaded defendant, Bernard Weisinger, for summary judgment against the defendants, denied the defendants' cross motion for summary judgment against him, and awarded judgment to the impleaded defendant dismissing on the merits defendants' counterclaim against him. Orders modified as follows: (a) by striking out all the decretal provisions other than those which deny defendants' cross motions for summary judgment against plaintiff corporation and against the impleaded defendant Bernard Weisinger; and (b) by substituting therefor a decretal paragraph denying the respective motions of the plaintiff and of the impleaded defendant for summary judgment. As so modified, the orders are affirmed, with one bill of $10 costs and disbursements to the defendants against plaintiff and the impleaded defendant; and the judgments are vacated. The record presents issues of fact which should be resolved after a plenary trial. Nolan, P.J., Beldock, Ughetta, Christ and Brennan, JJ., concur.