Barrett v. Jacobs

New York Court of Appeals

Barrett v. Jacobs

175 N.E. 275, 255 N.Y. 520, 1931 N.Y. LEXIS 709

CourtNew York Court of Appeals

DecidedFebruary 19, 1931

StatusPublished

Cited by345 cases

This text of 175 N.E. 275 (Barrett v. Jacobs) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Barrett v. Jacobs, 175 N.E. 275, 255 N.Y. 520, 1931 N.Y. LEXIS 709 (N.Y. 1931).

Pincite

Opinion

Per Curiam.

On an application for summary judgment under rule 113, Rules of Civil Practice, the only question is whether an unsubstantial formal defense has been interposed for purposes of delay. Judgment should not be granted unless it is clear that plaintiff has made out a case on the undisputed material facts presented on the record by affidavit or other proof. (Curry v. Mackenzie, 239 N. Y. 267, 269.)

In this case it is not clear that the action was not prematurely brought; it is not clear that the respondents have earned their commissions under their contract of employment. It is significant, although not conclusive, that the trial justice and two justices of the Appellate Division were of the opinion that there were questions *522 of fact to be tried. Respondents have an arguable defense on the record before us and should not be deprived of a trial.

The judgment of the Appellate Division should be reversed and the order of the Special Term affirmed, with costs in this court and in the Appellate Division.

Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ., concur.

Judgment accordingly.

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