In opposition to this motion, the defendant submits her counter-affidavit wherein she asserts that since her appointment she has attempted to examine the papers and records of the decedent, including her bank accounts, and finds no record of the notes; that she found a letter from the plaintiff to the decedent, dated December 7, 1955, wherein he makes no claim or demand for the money due upon the notes and thus concludes, that none was due; that she received a letter, dated January, 1957, wherein the decedent denied she was indebted to the plaintiff or that he had any interest in her property. From all of this the defendant then concludes:
'6. From these communications, I am convinced and verily believe that my sister was not indebted to the plaintiff in any sum or did she execute and deliver these alleged notes to the plaintiff. I am also convinced and believe that the signature on the alleged $ 12,000. note is not the signature of my sister, and if the signature on the alleged $ 1,400. note is the signature of my sister, then I believe it was never delivered by my sister to the plaintiff or there was never any consideration therefor.'
It is worthy of note at this point that the complaint was filed August i3, 1957, and the matter argued January 17, 1958, but that there is no affidavit of any handwriting expert or other person, including the defendant, that he has examined the notes and that in his opinion (by direct words) the signatures thereon are not the signatures of decedent.
The Court is extremely mindful of the directions enunciated by upper Courts on the use and disposition of motions for summary judgment; such motions are not to serve as a substitute for trial by jury nor as a means to try by affidavits disputed issues of fact. Under Rule 56 it is the function of trial courts to determine whether a genuine issue of material fact exists to be tried and the Court may only grant a movant judgment upon his motion when it is clear that there is no genuine issue as to any material fact. See Powell v. Fuller Brush Co., D.C.N.J.1954, 15 F.R.D. 239; and Sarnoff v. Ciaglia, 3 Cir., 1947, 165 F.2d 167.
Jurisdiction of this Court having been invoked on the grounds of diversity, the law of New Jersey is applicable. Thus, the plaintiff is entitled to the benefit of certain statutory presumptions, to wit:
R.S. 7:2-24, N.J.S.A. which provides:
'Every negotiable instrument is deemed prima facie to have been issued for a valuable consideration; and every person whose signature appears thereon to have become a party thereto for value.'
R.S. 7:2-59, N.J.S.A. which provides:
'Every holder is deemed prima facie to be a holder in due course; but when it is shown that the title of any person who has negotiated the instrument was defective, the burden is on the holder to prove that he or some person under whom he claims acquired the title as a holder in due course; but the last mentioned rule does not apply in favor of a party who became bound on the instrument prior to the acquisition of such defective title.'
And R.S. 7:2-16, N.J.S.A. which provides:
'* * * but where the instrument is in the hands of a holder in due course, a valid delivery thereof by all parties prior to him so as to make them liable to him is conclusively presumed; and where the instrument is no longer in the possession of a party whose signature appears thereon, a valid and intentional delivery by him is presumed until the contrary is proved.'
See First National Bank of Philadelphia v. Stonely, E. & A.1933, 111 N.J.L. 519, 168 A. 602; and Federal Deposit Insurance Corporation v. Miller, E. & A. 1943, 130 N.J.L. 626, on page 628, 33 A.2d 838, at page 839 wherein the Court stated:
'* * * Plaintiff's possession of the note raised a rebuttable presumption of nonpayment. Under R.S. 7:2-24, N.J.S.A. proof and offer of the subject note established a prima facie case. Payment is essentially an affirmative defense; and the burden of proof is on him who pleads it.'
An examination of the pleadings and affidavits in this matter discloses the plaintiff to be the holder of the two notes in question signed by the decedent. In light of the foregoing, that is sufficient to establish a prima facie case of issuance for value. The defendant on the other hand, aside from denying the allegations of the complaint, has raised a number of affirmative defenses which she fails to support by affidavit.
The Court has carefully considered that which the defendant has offered in opposition to this motion, namely, her affidavit and the letter from the decedent to the defendant. Both must be discounted for neither would be evidential upon a trial of this matter, the substance or content of the affidavit consisting of conclusions drawn by the defendant and not affirmations of fact, and the letter of the decedent being nothing more than a self-serving declaration.
With the supporting papers filed by the defendant having been discounted, the notes signed by the decedent in the possession of the plaintiff, appearing regular on their face, and payment thereof neither alleged or sworn to in such a fashion as to raise that defense, what genuine issue of fact is before the Court? In the Court's estimation there is obviously none, and consequently, the plaintiff is entitled to a judgment upon his motion.
The defendant herein has also made a motion in this matter for discovery of certain books and papers of the plaintiff, this was, likewise, argued and taken under advisement. In view of the foregoing disposition of the matter on the plaintiff's motion for summary judgment, it becomes unnecessary to pass upon the defendant's motion.
The plaintiff will prepare an appropriate order and submit the original notes in question to the Clerk of the Court to be marked, together with a computation of interest thereon at the rate provided by the terms of the notes.
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