Balsam v. Young

236 A.D. 854

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1932
• Status: Published

Opinion

— Order modified so as to provide that the motion to strike out the, answer and to appoint a referee to compute be denied, and as so modified affirmed, with, ten. dollars. costs and disbursements to appellant. The second, third and fourth decretal paragraphs of the order are struck out. The respondents’ motion to strike out said answer not having been made within the time prescribed by rule 105 of the Rules of Civil Practice, the court was without power to make such order. It appears without dispute that while the plaintiffs’ action against the appealing defendant on the $300 check was pending in the Municipal Court, plaintiffs’ motion for summary judgment thereon was denied. This, we think, was res adjudicata. Plaintiffs, in their notice of motion in the present action, did not ask for summary judgment on their claim for $300, and, besides, said defendant, by its answer and the affidavit of its secretary, raised triable issues of fact. Lazansky, P. J., Young, Kapper, Seudder and Tompkins, JJ., concur.