I would affirm the denial of summary judgment to the defendants and I would reverse the grant of summary judgment to the plaintiff.
Under every aspect of these multi-faceted agreements, I do not find the intent clear that the individual defendants were guarantors or principal obligors. Yet, for the plaintiff to recover, the intent must be clear. (Chemical Corn Exch. Bank v. Brous, 6 Misc 2d 372; 57 N. Y. Jur., Suretyship and Guaranty, § 106.)
Special Term rejected out of hand the defense of usury, although it may be available if the undertaking to submit an audit was an obligation assumed by the individual defendants. (Rosen v. Columbia Savs. & Loan Assn., 29 Misc 2d 329, affd. 15 A D 2d 810.) And the plaintiff admittedly is suing solely on the guarantee agreement. Yet, contradictorily, the managing director of the plaintiff, Soparge, S. A. (Mario Benbassat) in his letter of April 9, 1969, says, “We undertake that the *177promissory note will be presented for payment only as provided in the Purchase and Guarantee Agreements (Italics supplied.) And repeatedly is the contention advanced that the transaction was one integrated transaction, two agreements, but to be considered conjunctively. But, since the option. privilege in the purchase agreement never was exercised, the corporation may not be liable, nor the defendants.
And similarly, I would not grant judgment to the individual defendants because it is not clear whether it was intentioned they are the principal debtors or whether their liability accrued secondarily, only after the default of the corporation. As to this, there is a triable issue. (Roeder v. Judovitz, 30 A D 2d 770 [4th Dept., 1968].) If the corporation is liable, even the defense of usury is not available to the defendants (General Phoenix Corp. v. Cabot, 300 N. Y. 87), assuming the plaintiff can demonstrate a right to sue and that the defendants have not been discharged by the failure of Soparge, the obligee, to exercise its resale option and thereby failed to create a principal debt against Fidelity. Very questionable. Particularly, since the plaintiff commenced its action on December 22, 1969, although the option could be exercised within 30 days from December 31, 1969, or no later than January 30, 1970.
And all that is needed to defeat a motion for summary judgment is a single debatable question. (Stone v. Goodson 8 N Y 2d 8.)
Markewich, Kupferman and McNally, JJ., concur with Steuer, J.; McGivern, J. P., dissents in an opinion.
Order and judgment, Supreme Court, New York County entered on July 15 and September 10, 1970, respectively, affirmed. Respondent shall recover of appellants $50 costs and disbursements of the appeal.
Appeal from order of said court entered on July 30,1970, dismissed, without costs and without disbursements.