SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
June 11, 1968
MAXWELL SLOTE, AS TRUSTEE IN BANKRUPTCY OF ELMCLIFF CORP., APPELLANT,
CAPITAL EXCHANGE CORPORATION, RESPONDENT
Concur -- Stevens, J. P., Eager, Steuer, Capozzoli and McNally, JJ.
Plaintiff, as trustee in bankruptcy, sues on a promissory note for $50,000. There is no defense to the note but by way of setoff defendant pleads that it is the holder of two notes made by the bankrupt, which notes exceed in amount the note sued upon. An inspection of the record reveals that there are questions as to the date and manner of acquisition of the two notes which cast doubt on whether the notes are proper subjects of setoff. A trial is required.
Order entered February 2, 1968, unanimously reversed, on the law, with $50 costs and disbursements to abide the event, and the case remanded for trial on the issues raised by the defenses by way of setoff.
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