Opinion
May 24, 1962
Order, entered January 11, 1962, denying defendant's motion denominated as for reargument unanimously reversed on the law and in the exercise of discretion; order and judgment granting plaintiffs' motion for summary judgment unanimously reversed on the law; the motion for reargument granted; and the motion for summary judgment denied; with costs to defendant-appellant. In this action upon written agreements for the sale of stock, requiring the seller, at the purchaser's option, to repurchase the stock at an advanced price, there are issues of fact concerning the usury defense which cannot be resolved by summary judgment. The writings submitted in support of the motion, however convincing in establishing that a true sale occurred, are not conclusive ( Von Haus v. Soule, 146 App. Div. 731, 734; Restatement, Contracts, § 238, subd. [b]; § 529, Illus. 1; 22 N Y Jur., Evidence, § 634 and cases cited; Anno. — Parol Evidence Rule — Evidence as to Usury, 82 A.L.R. 1199, Supp. 104 A.L.R. 1261). Defendant denies the sale and asserts, with at least minimal evidentiary support, that a loan was made with the stock as security. Settle order on notice.
Concur — Botein, P.J., Breitel, Rabin, Eager and Steuer, JJ.