Pepsi-Cola Buffalo Bottling Corp. v. Wehrle Drive Supermarkets, Inc.

Order unanimously reversed on the law without costs and motion granted. Memorandum: Special Term erred in denying plaintiff’s motion for summary judgment. As neither party submitted extrinsic proof in admissible form, Special Term should have construed the instrument as a matter of law to determine whether defendant Egert’s signature on the guarantee was in an individual or corporate capacity (Olson Enters. v Agway, Inc., 55 NY2d 659; Hartford Acc. & Indem. Co. v Wesolowski, 33 NY2d 169).

Inasmuch as the guarantee in question is not a "negotiable instrument” (see, UCC 3-102 [1] [e]; 3-104…