Strauss v. Leo , 278 A.D. 706 ( 1951 )

In an action by plaintiff to recover $5,000 from the two corporate defendants and proportionate shares of the $5,000 from the two individual defendants in accordance with the stock interest of each in the corporate defendants, based on an oral agreement made in November, 1939, and a certain writing dated November 3, 1941, plaintiff was granted summary judgment against appellant (one of the individual defendants) on the ground that, even if the writing of November 3, 1941, was without consideration, it may nevertheless be enforced because of the provisions of subdivision 3 of section 33 of the Personal Property Law. Order reversed on the law and the facts, without costs, and plaintiff’s motion for summary judgment denied, without costs. An examination of the face of the writing of November 3, 1941, taken in conjunction with the allegations of paragraph twelfth of the complaint, raises a question of fact as to whether the obligation contained in the writing is corporate only or that of the individual signatories, of whom appellant is one. Carswell, Acting P. J., Johnston, Sneed, Wenzel and MacCrate, JJ., concur.