Opinion
July, 1935.
In an action on a promissory note made by defendant McGovern to the appellant and indorsed to plaintiff, order granting plaintiff's motion for summary judgment and the judgment entered thereon reversed on the law, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. In our opinion, the record discloses that in this action there are issues which cannot be tried on affidavits. The mere form of the indorsement is not conclusive against the appellant, but his explanation in his affidavit, if true, furnishes a complete defense. Lazansky, P.J., Young, Hagarty, Tompkins and Johnston, JJ., concur.