Crocker-Citizens National Bank v. L. N. Magazine Distributors, Inc.

In an action to recover upon six trade acceptances or drafts accepted by defendant, the latter appeals (1) from an order of the Supreme Court, Queens County, entered April 6, 1966, which granted plaintiff's motion for summary judgment; and (2) from a judgment of said court, entered April 6, 1966 in plaintiff’s favor, pursuant to said order. Order reversed and judgment vacated, with one bill of $10 costs and disbursements to defendant, and plaintiff’s motion for summary judgment denied, without costs. In our opinion, there is a triable issue as to whether plaintiff is a holder in due course of the instruments sued upon (Franklin Washington Trust Co. v. Jaeger, 282 App. Div. 1067), Moreover, the rule is here applicable that summary judgment should not be granted if the facts upon which the motion is predicated are exclusively within the knowledge of the moving party or clearly not within the knowledge of the opponent (Franklin Nat. Bank v. De Giacomo, 20 A D 2d 797; cf. CPLR 3212, subd. [f]). Beldock, P. J., Ughetta, Brennan, Hill and Hopkins, JJ., concur.