On motion for summary judgment.
Yancey, J.c.c. (temporarily assigned).
This is a motion for summary judgment on three notes executed by defendant Green Lane, Inc. and signed by defendant George Gottesman, its secretary.
The notes were signed May 15, 1964 to the order of Comfort Cooling Co. Defendants claim in their affidavit by Gottesman that the notes were made with the express agreement that they would not be discounted "but would merely be exhibited for the purpose of obtaining supplies in order to complete the contract." Unfortunately, this was nowhere indicated on the instruments.
Defendants claim that on May 18, 1964, when the corporation learned of Comfort Cooling's intent to discount the notes to plaintiff, and again on May 19, Gottesman telephoned plaintiff, spoke to Alexander Matathias, its vice-president, and "advised him of Green Lane's position, and emphatically requested that the notes not be discounted." Nevertheless, plaintiff acquired the notes.
In an affidavit dated May 29, 1967 and filed in support of an earlier motion for summary judgment, which was later withdrawn, Matathias said that the notes were purchased on May 21, 1964. In the affidavit in support of this motion,
dated February 29, 1968, Matathias says the notes were purchased on May 15, 1964, thus, if true, sidestepping the issue of notice by Gottesman.
Defendants say Comfort Cooling did not complete performance and subsequently went bankrupt. They do not say how soon this was after the discounting and do not specifically allege plaintiff had knowledge of Comfort's financial troubles and of its incomplete performance. However, Gottesman does allege his "firm belief" that "plaintiff corporation had complete knowledge of the surrounding circumstances."
R.R. 4:58-6 states in pertinent part: "Supporting and opposing affidavits shall be made on personal knowledge and shall set forth only facts which are admissible in evidence and to which the affiant is competent to testify." Defendant's "belief" is unsupported by factual allegations and thus I hold as a matter of law that it is insufficient to show a defense exists within the meaning of N.J.S. 12 A:3-307(3)*fn1 or to create a genuine issue of a material fact. See N.J. Mtge. and Inv. Corp. v. Calvetti, 68 N.J. Super. 18, 19, 32-33 (App. Div. 1961).
As the Court of Errors and Appeals said in affirming a directed judgment in Hudson County National Bank v. Alexander Furs, Inc., 133 N.J.L. 256 (E. & A. 1945):
"The defendants had the burden of establishing proof which would have justified the court in submitting the facts to the jury to decide the factual issues raised by the defendants' pleadings. This the defendants failed to do and the court below properly directed a verdict in favor of the plaintiff. Polhemus v. Prudential Realty Corp., 74 N.J.L. 570; Trustees System Company of Newark v. Lisena, 106 N.J.L. 549." (at p. 260)
In N.J. Mtge. and Inv. Corp. v. Calvetti, supra, at p. 36, the court, in a case very similar to ...