Kay v. Tankel , 204 N.Y.S.2d 366 ( 1960 )

Mario Pittoni, J.

The plaintiff’s motion for summary judgment is denied.

First, the complaint fails to state a cause of action. It alleges that on May 22, 1955, the defendant for value issued two checks in the sum of $1,000 and $3,410. A check is a bill of exchange, drawn on a bank and payable on demand. (Negotiable Instruments Law, § 321.) There is no allegation that these alleged checks were presented to and dishonored by a bank. Furthermore, on this motion the plaintiff has submitted as exhibits two promissory notes dated May 5, 1955, for the amounts previously stated, instead of any checks.

Second, if the complaint did state a cause of action, summary judgment would be denied anyway. There are issues of fact concerning collateral securities deposited with the plaintiff by the defendant for the payment of the negotiable instruments herein. Among the factual issues to be decided are: Were the valuable Palestine stamps delivered to the plaintiff for security? If so, where are they? Were they used by the plaintiff in payment of the negotiable instruments herein? • Thus, issues of fact prevent the granting of a motion for summary judgment (Falk v. Goodman, 7 N Y 2d 87; Sillman v. Twentieth Century-Fox Film Corp., 3 N Y 2d 395, 404).