(dissenting). For reasons presently made apparent, I am unable to sign the opinion prepared by Mr. Justice Carr.
The text of this opinion will be taken from Rockmore v. Epstein, 127 Misc 526 (217 NYS 76, 77), as follows:
“Every one except a corporation may invoke the defense of usury. The determination of whether the denial of a defense of usury to a corporation can be extended by implication, so as to deny such a defense *555to an individual who is a comaker of a note is to he determined by the nature and character of that individual’s obligation under the note and the circumstances under which he assumed the obligation.”;
and from Pink v. L. Kaplan, Inc., 252 App Div 490, 492 (300 NYS 45, 47, 48), as follows:
“Under the present state of the evidence, we think a triable issue exists as to whether or not the individual defendants were parties to a usurious loan agreement. If, as a matter of fact, they were merely sureties or guarantors of the corporation’s debt, the defense of usury is not available to them. If they were parties to a loan agreement at an unlawful rate, the defense is good. We believe these matters are sufficiently in dispute to preclude their determination on affidavits; and summary judgment should not have been granted against the individual defendants.’’
May 27, 1949, Sax-Kay, Inc., a Michigan corporation, and defendant Fetter executed and delivered to plaintiff Pardee a promissory note in the sum of $5,000. The note is usurious on its face and, on account thereof, we are confronted with disputed interpretation of section 78 of the general corporation act (CL 1948, §450.78 [Stat Ann §21.78]), which provides in substance that no corporation shall plead the defense of usury.
October 8, 1954 plaintiff brought this suit in the "Wayne circuit against defendant Fetter. He declared on the note, alleged total payment of $2,866.39 thereon, and asked judgment for an alleged unpaid balance calculated at the note-specified usurious rate. Defendant pleaded usury. Plaintiff says he cannot. The issue, so framed, comes to us on review of summary judgment, granted plaintiff by the Honorable Lila M. Neuenfelt, circuit judge, for the full usury-calculated balance as claimed.
*556The decisive question is essentially one of practice, and it may be put this way: Was the court below justified in finding, as a matter of law in the course of proceedings under Court Rule No 30 (1945), that defendant was an accommodation party?
If we are ready to adopt the so-called New York rule that accommodators of corporations are deprived of the defense of usury (Rosa v. Butterfield, 33 NY 665; Stewart v. Bramhall, 74 NY 85; Ludington v. Kirk, 17 Misc 129 [39 NYS 419]) — I for one am not, — we, at least, should be able to make initial determination, as a matter of law in the case before us, that the usury-pleading individual is such an .accommodator. I say this because, even in the State whose law we are asked to follow, the courts have made it abundantly clear that “An individual who becomes a joint primary debtor with the corporation may plead usury though the corporation is barred from doing so” (Cabrera v. Olsen, 165 Misc 374 [300 NYS 524, 526]).
Mr. Honigman says (Honigman, Michigan Court Rules Annotated, pp 301, 302):
“The burden of establishing the nonexistence of a .genuine issue of fact which would warrant the granting of a summary judgment is always on the moving party. If from the facts presented to the court at the hearing on the motion for summary judgment there appears doubt as to whether or not there are controverted issues of material facts, the motion for summary judgment should be denied. When it appears that there are controverted material facts, the court cannot dispose of the case by deciding those fact issues in the.course of the hearing of the motion. In such event, the summary judgment must be denied and the cause left for disposition by a trial in the regular course. * * *
“Federal rule 56 deals with motions for summary judgments. While that rule is in some respects different from the instant rule and provides for broader *557scope of inquiry for determining whether or not there are genuine issues of fact, the basic principles applicable to the Federal rule and the instant rule are the same. Thus, the vast number of decisions under the Federal rule should be helpful in the interpretation of the instant rule.”
The quoted “Author’s Comment” is an accurate summary of Federal decisions, as well as our own, dealing with summary judgment practice. It is clear therefrom that the plaintiff’s affidavit or affidavits in a case of this nature must contain verification of all the material facts needed to establish prima facie the claimed right of recovery of usury plus principal and legal interest.
“It is only where it is perfectly clear that there are-no issues in the case that a summary judgment is proper. Even in cases where the judge is of opinion that he will have to direct a verdict for one party or the other on the issues that have been raised, he should ordinarily hear the evidence and direct the verdict rather than attempt to try the case in advance on a motion for summary judgment, which was never intended to enable parties to evade jury trials or have the judge weigh evidence in advance of its being presented.” Pierce v. Ford Motor Co. (CCA), 190 F2d 910, 915 (certiorari denied, 342 US 887 [72. S Ct 178, 96 L ed 666]).
“Upon a motion for a summary judgment it is no-part of the court’s function to decide issues of fact but solely to determine whether there is an issue of fact to be tried. Ramsouer v. Midland Valley R. Co. (DC Ark, 1942), 44 F Supp 523. All doubts as to the existence of a genuine issue as to a material fact must be resolved against the party moving for a summary judgment. Weisser v. Mursam Shoe Corporation (CCA), 127 F2d 344 (145 ALR 467).”' Hunter v. Mitchell (CCA), 180 F2d 763, 764.
“On a motion for a summary judgment the burden of establishing the nonexistence of any genuine issue *558of fact is upon the moving party, all doubts are resolved against him, and his supporting affidavits and depositions, if any, are carefully scrutinized by the court. The. object of the motion is .to separate the formal from the substantial issues raised by the pleadings, and the court examines evidence on the motion, not to decide any issue of fact which may be presented, but to discover if any real issue exists.” Walling v. Fairmont Creamery Co. (CCA), 139 F2d 318, 322.
“In considering such a motion (for summary judgment) as in a motion for a directed verdict, the court should take that view of the evidence most favorable to the party against whom it is directed, giving to that party the benefit of all favorable inferences that may reasonably be drawn from the evidence. If, when so viewed, reasonable men might reach different conclusions, the motion should be denied and the case tried on its merits.” Ramsouer v. Midland Valley R. Co. (CCA), 135 F2d 101, 106.
“All doubts as to the existence of a genuine issue as to a material fact must be resolved against the party moving for a summary judgment. Weisser v. Mursam Shoe Corporation (CCA), 127 F2d 344 (145 ALR 467).'” Toebelman v. Missouri-Kansas Pipe Line Co. (CCA), 130 F2d 1016, 1018.
“Both of the affidavits are subject to the criticism that they dealt principally with conclusions rather than with statements of fact. Had plaintiff more particularly set up the consideration for the note, we would be inclined to hold that defendants’ denial of consideration was not sufficiently specific. But, as both affidavits are on the border line, summary judgment should not be entered.” Scripsema v. DeKorne, 276 Mich 634, 636.
Guided by foregoing comment and settled view of practice under Court Rule No 30 (1945), we examine the proceedings below on which it is said that defendant Fetter was Sax-Kay’s accommodator.
*559Plaintiff’s material affirmance, in his affidavit filed under section 1 of the rule, reads this way:
“4. On May 27, 1949, Sax-Kay, Inc., a Michigan corporation, whose president then was defendant Harold E. Fetter, borrowed the sum of $5,000 from affiant and made its promissory note in writing whereby it promised to pay to affiant or to his order the said sum of $5,000 on August 27, 1949. * * *
“5. Simultaneously therewith, defendant Harold E. Fetter then and there indorsed said note in the following manner:
“ ‘The undersigned severally waive presentment for payment, notice of nonpayment or dishonor, protest and notice of protest for nonpayment, of any instalment of principal or interest and hereby consent to the extension of time payment without notice.
“/s/ Harold E. Fetter
:and thereupon said note was handed to affiant, so indorsed, in exchange for the sum of $5,000, as aforesaid. * * *
“7. Sax-Kay, Inc., was adjudicated a bankrupt on August 10, 1949, by the district court of the United States for the eastern district of Michigan, southern division, in bankruptcy, and on July 28, 1954, affiant received the sum of $2,866.39 from the assets of the estate of the bankrupt, in partial payment on said note.”
Defendant’s affidavit of merits contains no presently material fact-information excepting such as may be inferred from conclusion (2) of his affidavit, reading as follows:
“(2) Further answering said affidavit, your deponent says that said promissory note was executed by your deponent without consideration.”
Neither party has testified, by affidavit or otherwise according to strict requirement of Court Rule No 30 (1945), to facts on which the circuit court and *560this Court in turn might of right brand defendant as-an accommodation party per statute (CL 1948 § 439.31 [Stat Ann § 19.71]). The word “accommodation” is not mentioned in the respective affidavits- and there is no averred fact in either justifying judicial conclusion that defendant lent his name to the-corporation and that he signed the instrument “without receiving value therefor.” Defendant’s quoted conclusion — that he executed without consideration — is copied from his answer and. is of no greater evidentiary worth than would be accorded such a statement if uttered from the witness stand without fact support. Finally, defendant has not admitted by pleading or otherwise that he is an accommodation party. He has admitted that he is an “indorser.” That is not sufficient to destroy issue as to practice of usury against him — neither does it warrant usurious judgment against him.
. An “indorser” isn’t necessarily an “accommodation party,” and an “accommodation party” isn’t necessarily an “indorser.” When, and in suit between original parties thereto, a court of justice assumes to decide the rightful status of parties to a negotiable instrument, it should obtain all the evidentiary and admissible facts that are determinative of such status. That has not as yet been seen to in the case before us.
The presently decisive facts are these:' The defendant is conclusively shown by .plaintiff’s affidavit as having been president of the.cosigning corporation; the affidavit shows that defendant signed the note as president of the corporation in addition to and at the time his personal signature was affixed to reverse side thereof; the affidavit thus establishes that defendant personally participated in negotiation of the transaction evidenced by the note and it shows finally • that' defendant’s ' presumptively insolvent corporation was on the -date *561of the note a hare 75 days away from adjudication as a bankrupt. Actually, this short-term usury-shot note had not even matured when the cosigning corporation went under. The record in consequence discloses fair earmark of contrived use of a failing corporation’s usury-cloak to evade our prohibition against usury, and it affirmatively suggests that cross-examination would unearth facts not yet disclosed on which the pivotal question of usurious intent is usually resolved.
I do not say the record as it stands establishes, as a matter of law, that the defendant was not an accommodation indorser. I do say from very face of the motion for summary judgment and respective affidavits that the defendant president and the now defunct corporation prima facie were joint makers of the note (Perron v. First National Bank, 289 Mich 629; City National Bank v. Price’s Estate, 225 Mich 200) and that the motion for summary judgment should have been denied for want of a fact vital to plaintiff’s asserted 'legal position.
I wish to record by illustration my concern upon affirmance of the decision below — a decision which if let to stand will commit individual accommodation indorsers of corporate papers in this State to the brutality of usury. Let me assume that the widow Jones, dependent entirely on life savings of $11,000, had been inveigled without benefit to herself into accommodation indorsement of this Sax-Kay note and that she — not the president of Sax-Kay — had thus become defendant in this suit. Would the court below then have been so quick to grant summary .judgment against her as claimed by plaintiff? I .answer by pointing up from the record these figure-facts: The holder of this note, having already received $2,866.39 toward payment thereof, would then receive by such judgment against the widow another $10,490.73, making a grand total of $13,357.12 for *562and on account of his loan in 1949 of $5,000. Shylock, where’er he may he, undoubtedly becomes envious.
I would reverse for trial of pleaded issues or, in alternative, order the taking of testimony as indicated on authority of Court Rule No 72 (1945). The Court in the Epstein Case permitted such procedure in substance, as shown in the final paragraph of decision, and the practice of taking testimony on motion for summary judgment when any fact is possibly in doubt should he encouraged. See in support of this last affirmation Mr. Honigman’s comment on page 303 of his mentioned work.