Opinion
June 9, 1941.
In an action upon a promissory note, order denying plaintiff's motion for summary judgment, pursuant to rule 113 of the Rules of Civil Practice, reversed on the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. The execution and delivery of the note, the consideration therefor, and its nonpayment were undisputed. The burden was upon the defendants to show by affidavit or other proof such facts as may be deemed sufficient to entitle them to a trial of the issues. The only issue, as pleaded, was whether or not a settlement agreement had been effected. Plaintiff showed that after this agreement alleged by defendants to have been made, defendants' attorney admitted that it had never been consummated. If the agreement was in writing that writing should have been produced, but it was not. If it was oral, it was unenforcible. (Pers. Prop. Law, § 33-a; Atterbury v. Walsh Paper Corp., 261 App. Div. 529. ) Lazansky, P.J., Hagarty, Adel, Taylor and Close, JJ., concur.