¶1On this motion for summary judgment the question presented is whether the record discloses a triable issue. I agree with the majority for the reasons stated, that no issue is presented by the contention that if defendants failed to pay and take up the stock by a specified date the note would not be payable. The situation is, however, otherwise as to the defense of usury. There we have two different versions of the nature of the transaction by which the note in suit was given and the prior note for $48,000 cancelled. If the transaction was, in fact, as the plaintiff claims, that is, a novation wherein the prior sale of the stock was abrogated and a new sale made for $58,000, no obstacle to recovery was presented. If on the other hand plaintiff agreed to extend the time for payment two months in consideration of an agreement to pay $10,000, there can be no doubt that the resulting exaction for forbearance taints the transaction with usury. I do not read the majority opinion to state otherwise. However, reliance is placed on the failure to make a suitable factual presentation. True, defendants plead a contrary situation and their proof is not supported *402by anything other than their hare words. These are factors which have great cogency in resolving the issue but do not determine whether an issue exists. Nor is it particularly significant that the defense has been successful mostly in instances where the note was given for a loan rather than for the purchase of property. At most this factor renders the defense factually weak. It does not proscribe it.
¶2The order should be affirmed.
¶3Valente, McNally and Stevens, JJ., concur with Breitel, J. P.; Steuer, J., dissents and votes to affirm, in opinion.
¶4Order, entered on September 11, 1963, so far as appealed from modified, on the law, with $20 costs and disbursements to appellant, the defenses to the first cause of action stricken, and the motion for summary judgment on the first cause of action granted, with $10 costs.