(dissenting). Plaintiff sues to recover $10,000 which he claims to have loaned to defendant on January 31, 1955, to be repaid before April 1, 1956 at 6% interest. Despite the denial by defendant that a loan was made to him, plaintiff was granted summary judgment by Special Term on the ground that the denial ‘1 is flatly contradicted by the documentary evidence submitted by plaintiff ”, I must dissent from the affirmance of the summary judgment because I do not find that the evidence adduced in plaintiff’s affidavits dissipates the bona fide issues posed by defendant’s denials and the averments in his affidavits.
The alleged loan had its genesis in two checks of $5,000 each which plaintiff claims he delivered to defendant in the presence of the wives of the parties and one Ben Cohen, a Florida attorney. One of those checks was made by plaintiff’s brother-in-law and the other by plaintiff. Plaintiff sues for the full $10,000 because he alleges he paid $5,000 to his brother-in-law. Although made out to defendant, the checks were deposited in the account of Ben Cohen’s secretary. As to one of these checks defendant avers that the indorsement of his name thereon is a forgery.
Plaintiff has produced a letter written by Ben Cohen to plaintiff, almost two weeks after the making of the alleged loan, in which there is reference to a loan of $10,000 to defendant and that Cohen had been instructed by defendant to hold certain debentures as security. Special Term found in that letter “ overwhelming proof that there was such a loan ”. However, defendant denies that he ever instructed Ben Cohen to write the letter. Cohen, in a deposition in a related Florida action, swore that at the time he wrote the letter ‘ ‘ it was my understanding that this money was being loaned to Mrs. Harris and not Mr. Harris ”. Cohen also confirmed defendant’s contention here that the money represented by the two checks was not plaintiff’s money but that of Mrs. Harris.
It is apparent that Cohen’s letter does not have the conclusive demolishing effect given to it by Special Term. Only upon a trial can the facts as to the circumstances surrounding the writing of that letter be fully explored. So, too, only upon a trial can defendant’s claim that the $10,000 was advanced by his wife, and not the plaintiff, be determined. If indeed, it was defendant’s wife who advanced the money to enable defendant to purchase an interest in a hotel, defendant may urge that the advance was merely a return of part of the gifts he had theretofore given her.
Enough has been said to indicate that this is not a case where a reluctant debtor is seeking to delay recovery by interposing *285a sham denial of a loan in a suit by a creditor. We are not called upon to weigh the evidence upon a motion for summary judgment but solely to find if any triable issues are presented. (Sillman v. Twentieth Century-Fox, 3 N Y 2d 395, 404.) The record seems veritably to bristle with issues which should not be determined on affidavits.
Of particular significance — since it bolsters defendant’s assertions that plaintiff’s apparently innocuous suit on a loan is not what it seems to be — is plaintiff’s own equivocal conduct in the commencement of an action in Florida on the same loan sued on in this State. While in the instant suit the loan is alleged to be a time loan payable on April 1, 1956 at 6% interest, in the pending Florida action plaintiff alleges it was a demand loan at 10% interest. Plaintiff has not sufficiently explained this strange metamorphosis.
This is clearly not a case for summary judgment.
Botein, P. J., Breitel, Rabin and M. M. Frank, JJ., concur in Per Curiam opinion; Valente, J., dissents and votes to deny summary judgment in opinion.
Order and judgment entered thereon affirmed, with $20 costs and disbursements to the respondent.