Opinion
May 15, 1967
Appeal from an order and judgment of the County Court of Rensselaer County which granted plaintiff's motion for summary judgment. Plaintiff's supporting affidavit in lieu of a complaint (CPLR 3213) alleges, and defendant does not deny, that defendant executed and delivered his promissory note to plaintiff in the amount of $2,000 payable on or before January 1, 1962. The affidavit does not assert what the consideration was, while defendant's answering affidavit alleges lack of consideration and that at the time the note was given, defendant "may have been indebted to the Plaintiff as a result of gambling losses * * * [and] Plaintiff insisted that the Defendant sign the instrument to acknowledge this gambling indebtedness." No reply affidavit was made by plaintiff. While neither affidavit is a model of clarity and sufficiency, the allegation in defendant's affidavit is, in our opinion, sufficient to raise the question of want of consideration. Although the note here may be negotiable, lack of consideration is a defense as between the original parties to the instrument (Negotiable Instruments Law, §§ 54, 97). A note given for payment of a gambling loss incurred in New York is unenforcible (Penal Law, § 993; Katz v. Bieber, 194 N.Y.S. 103; Corn Exch. Bank Trust Co. v. Cohen, 143 N.Y.S.2d 63); but a note evidencing a gambling debt incurred elsewhere is not necessarily unenforcible here (cf. Intercontinental Hotels Corp. v. Golden, 15 N.Y.2d 9). Defendant having alleged lack of consideration and that the note was given to acknowledge a gambling debt, it is clear, in context, that the term lack of consideration was intended to characterize the gambling indebtedness; and it thereupon became incumbent upon the plaintiff to come forward with an answering affidavit asserting evidentiary facts in support of his summary motion. ( Shapiro v. Health Ins. Plan, 7 N.Y.2d 56, 63; Ball v. United Artists Corp., 13 A.D.2d 133, 135). Not having done so, the plaintiff was not entitled to summary judgment. Similarly, the defendant was not entitled to the dismissal of the action without further specifications as to the matter of the alleged underlying debt. Where a contract is declared void by statute, facts must be pleaded showing the nature of the illegality and that the contract was made within the jurisdiction where the prohibitive statute is effective (see Donnelly v. Bauder, 217 App. Div. 59). Order and judgment reversed, on the law and the facts, and motions denied, without costs. Gibson, P.J., Herlihy, Reynolds, Aulisi and Staley, Jr., JJ., concur in memorandum by Aulisi, J.