I concur with Mr, Justice Eager and join in his dissent with respect to the first cause of action. I too believe that there are issues of fact to be tried. However, I go further and dissent insofar as this court would affirm the order granting plaintiff’s motion for summary judgment and the judgment entered thereon with respect to the second, third, fourth, fifth and sixth causes of action. I believe that in those causes of action, as in the first' cause of action,. there are present issues of fact which should be disposed of at trial rather than on motion for summary judgment. The notes were not negotiated. They are still held by the plaintiff, the payee. The defendant resists payment on the ground that the notes were given in payment of merchandise purchased by the maker from the plaintiff and that the merchandise shipped was of inferior quality and unmerchantable. He supports that claim by setting forth sufficient facts in his affidavit to raise a triable issue. True, the plaintiff asserts that in view of the agreement entered into by the defendant not to assert any. offset or counterclaim as against these notes, such defense should not be considered. However, whether that agreement applied only to notes outstanding at the time the agreement was signed or whether it was intended to encompass these notes which were subsequently issued, is another issue in dispute which should also be resolved upon trial.
Accordingly, I believe that the order granting plaintiff summary judgment should be reversed in its entirety, the motion denied and the judgment entered thereon set aside.
Breitel, J. P. and Valente, J., concur with Stevens, J.; Rabin, J., dissents and votes to reverse and deny summary judgment in toto, in opinion; Eager, J., dissents in part and votes to reverse in part and deny summary judgment as to first cause of action, in opinion.
Judgment and order affirmed, with costs to the. respondent.