Majority
In an action to recover (1) $40,000.04, the balance owing on a demand promissory note, and (2) $4,000 for collection expenses, including a reasonable counsel fee, under a provision therefor in the note, plaintiff appeals from an order of the Supreme Court, Suffolk County, dated February 26, 1974, which denied its motion for summary judgment. Order reversed, on the law, with $20 costs and disbursements; plaintiff’s motion granted as to the first cause of action as demanded in the complaint; granted as to the second cause of action on the issue of liability, and motion remitted to Special Term for a hearing to determine the amount to be awarded to plaintiff. The defense set forth is insufficient as a matter of law. Martuscello, Acting P. J., Latham, Shapiro, Benjamin and Munder, JJ., concur.