Perera v. Longone — 215 A.D. 796

Majority

p. 796

First Department,

January, 1926.

Lionello Perera, Trading under the Firm Name and Style of Lionello Perera & Co., Respondent, v. Paul Longone, Appellant.

Headnote

J udgments — summary judgment — action on promissory note —• answering affidavits show wagering contract — issue raised ■— summary judgment denied.

Appeal from an order of the Supreme Court, made at the New York Special Term and entered in the New York county clerk’s office April 16, 1925, granting the plaintiff’s motion for summary judgment under rule 113 of the Rules of Civil Prabtiee, in abtion on promissory note, and also from the judgment entered April 22, 1925, pursuant to said order.

The answering affidavits show that a wagering contract was contemplated by the parties, and if this be proven at trial it will defeat the plaintiff’s cause. Therefore, since an issue of fact was presented, the judgment and order should be reversed, with costs, and the motion for summary judgment denied, with ten dollars costs. Present — Clarke, P. J., Dowling, Finch, McAvoy and Martin, JJ. Judgment and order reversed, with costs, and motion for summary judgment denied, with ten dollars costs.