Opinion
April 22, 1938.
In an action to recover for goods sold and delivered to defendant Philip Levy, payment of which was guaranteed by defendant S. Cyrus Levy in consideration of the plaintiff's accepting installment payments, plaintiff's motion for judgment was denied by the City Court of Yonkers, and the order of denial was affirmed by the County Court, Westchester county. The appeal is by plaintiff from the order of affirmance. Order of the County Court reversed on the law, order of the City Court reversed, with costs in all courts, and motion for summary judgment granted, with ten dollars costs. The facts shown are not sufficient to entitle respondent to defend. The writing evidences a valid guaranty. Lazansky, P.J., Hagarty, Carswell and Adel, JJ., concur; Close, J., dissents and votes to affirm on authority of Sun Oil Co. v. Heller ( 248 N.Y. 28).