Opinion
April, 1930.
Order of Appellate Term unanimously affirmed, with costs. It is undisputed that at the time of the alleged agreement, the appellants owed Nulin Co., Inc., and Morris Levin the sum of $9,700. It is also undisputed that in paying to Bloise Praino the sum of $5,000, which was due from Levin and Nulin Co., Inc., to Bloise Praino, the indebtedness of the appellants to Levin and his company was reduced by this amount, leaving a balance of about $4,700 due from the appellants to Levin and Nulin Co., Inc. If upon the appellants making this payment to Bloise Praino, Levin and his company promised to return the two notes in suit which had a valid inception and were in the hands of the plaintiff as a holder in due course, there was no obligation to do so and the promise was nudum pactum. There was, therefore, no issue to be tried, even assuming that Levin made the promise asserted. Hence, the motion for summary judgment was properly granted. Rich, Young, Kapper and Tompkins, JJ., concur; Lazansky, P.J., concurs in result.