Opinion
October 4, 1971
In this action for a declaratory judgment that, inter alia, certain promissory notes executed by plaintiff Gold Hart Chemists, Inc. and indorsed by plaintiff Goldstein as guarantor were discharged, plaintiffs appeal from an order of the Supreme Court, Westchester County, dated November 23, 1970, which denied their motion for summary judgment. Order affirmed, without costs. Plaintiffs' contention that Morris Hartman (not a party to this action and a co-obligor on the notes) was released by defendant from any further obligation on the notes, and that therefore they were also thereby discharged from further obligation thereunder, was not established in the record. Plaintiff Goldstein's affidavit that he was so informed by Hartman was insufficient to establish such alleged fact. A plenary trial is called for at which Hartman and other persons who participated in the transaction between him and defendant might testify concerning whether defendant had released Hartman wholly or partially from his obligation under the notes. (See General Obligations Law, §§ 15-103, 15-104, 15-105, as to the extent, if any, to which the release by an obligee of notes to one obligor might effect a total or partial release of the co-obligors' liability on the notes.) Hopkins, Acting P.J., Gulotta, Christ, Brennan and Benjamin, JJ., concur.