Opinion
November 21, 1966
In an action to recover, on a written guarantee of payment, the unpaid balance of the price of material sold and delivered, plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County, entered May 24, 1966, as denied its motion to strike out the affirmative defense of defendant Third Sachar Building Corporation. Order affirmed insofar as appealed from, with $10 costs and disbursements. It is pleaded in the defense not only that the guarantee was ultra vires, but that it was unauthorized. The burden is on plaintiff to show that the paper it relies on, ostensibly signed by one Fischer, was authorized by defendant Third Sachar Building Corporation. In pleading lack of authorization, the defense was proper in that it afforded plaintiff notice of the ground upon which said defendant denied the efficacy of the purported guarantee. Beldock, P.J., Ughetta, Brennan, Hopkins and Benjamin, JJ., concur.