Robert Tarlow & Son v. Betchen , 10 N.J. Misc. 482 ( 1932 )

Pee Cueiam.

This is an appeal from a summary judgment of the Atlantic City District Court and an order striking as sham the defenses pleaded in an action upon a promissory note dated November 7th, 1930, made by the defendant to the order of the plaintiff.

The defenses were as follows: (1) An agreement that the note should be paid in merchandise; (2) a discharge in bankruptcy; (3) failure of consideration. These defenses were regarded by the District Court as good on their face, since they were struck as sham. National Surety Co. v. Mulligan, 105 N. J. L. 336. This was a proper view of the law. Chaddock v. Vanness, 35 Id. 517; McCormack v. Williams, 88 Id. 170; Cockrell v. McKenna, 104 Id. 592; Gaddis v. Gaddis, No. 411 January term, 1932.

Our examination of the affidavits on the motion to strike, which are here challenged for insufficiency, leads us to the conclusion that they were not sufficient to support the action of the trial court, and that there were disputed questions of fact which could only be settled after a trial. Levine v. Aetna Casualty and Surety Co., 107 N. J. L. 381; 153 Atl. Rep. 395.

The judgment below is reversed.