American Ball Bearing Corp. v. Hewes & Penn Corp.

283 A.D. 1068, 131 N.Y.S.2d 295, 1954 N.Y. App. Div. LEXIS 6339

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 7, 1954
• Status: Published

Opinion

— -Action by former tenants under a lease, terminated by a condemnation proceeding instituted by the City of New York, to recover by way of damages a substantial portion of the condemnation award. Plaintiffs claim that said portion justly belongs to them but was wrongfully received by defendant. Defendant appeals from an order denying its motion for summary judgment under rule 113 of the Rules of Civil Practice. Order affirmed, with $10 costs and disbursements. The action essentially is one to recover damages based on common-law fraud and deceit. In such an action, rule 113 does not authorize the granting of summary judgment unless a defense has been interposed which is founded on facts established by documentary evidence or official record. Moreover, in an action of that character the parol evidence rule has no application and may not be invoked to bar proof of the fraud. Nolan, P. J., Wenzel, Schmidt and Murphy, JJ., concur. Beldock, J., not voting. [See 284 App. Div. 848.]