Louis Sherry Ice Cream Co. v. Kroggel , 42 Misc. 2d 21 ( 1963 )

Francis T. Murphy, Jr., J.

Upon the foregoing papers this motion for summary judgment in favor of plaintiff for the sum of $300, plus interest, from September 1,1963, is granted. This action is based upon defendant’s failure to pay said sum according to the terms of a customer’s loan receipt executed by defendant to become payable on demand, upon plaintiff’s delivery of certain equipment to defendant. No cases have been found or submitted to support defendant’s contention that on a motion of this type, brought under section 3213 of the Civil Practice Law and Buies, the “ instrument for the payment of money only ”, described in that section must be a negotiable instrument. If the Legislature had intended to so restrict the application of the section, it could have done so by so stating. The other defense attempted to be raised in the opposing papers — that the equipment delivered was defective — may not be considered for the affidavit submitted in opposition is that of defendant’s attorney, who does not indicate why defendant did not execute it, and upon what basis his knowledge of the facts is founded.