The action is on a promissory note for $300, the defense a general denial and failure of consideration.
*937Plaintiff’s motion papers set forth the making and delivery of note and non-payment.
Defendant in his opposing affidavit avers that the parties were partners; that on the dissolution of the partnership the plaintiff assumed and agreed to settle a negligence suit for $300, one-half of which was to be contributed by each, and that the note in suit represents this transaction; that instead of settling the negligence suit plaintiff has so handled it that it now includes two actions to recover $12,000. This would, if proved, constitute a good defense of failure of consideration.
Plaintiff makes no replying affidavit.
The motion for summary judgment was improperly granted.
Judgment and order reversed, with ten dollars costs, and motion denied.
All concur; present, Guy, Bijur and Mullan, JJ.