Bertolf Bros. v. Leuthardt

261 A.D. 981, 26 N.Y.S.2d 114, 1941 N.Y. App. Div. LEXIS 8417

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 17, 1941
• Status: Published

Opinion

The plaintiff appeals from an order denying its motion for summary judgment pursuant to rules 113 and 114 of the Rules of Civil Practice and section 255-a of the Civil Practice Act. Order reversed on the law, with ten dollars costs and disbursements, the motion to strike out paragraphs “ First ” and “ Fourth ” of the defendant’s answer is granted, with ten dollars costs, and judgment is directed for the plaintiff as prayed for in the complaint, less the sum of ninety dollars with interest from September 23, 1939. In so far as the plaintiff’s claim is concerned, the defendant failed to raise any triable issue by failing to indicate specific items contained in the schedule attached to the plaintiff’s complaint which he disputed. (Anderson v. City of New York, 258 App. Div. 588.) The defendant likewise failed to raise any issue under its special defense. A bare statement in the answer and repeated in the affidavit that the contract was made in New York, unsupported by any evidentiary facts, creates no issue of fact in face of the particulars furnished by the plaintiff as to the making of the contract. Unless the contract was made in this State, section 218 of the General Corporation Law has no application. (Acorn Brass Manufacturing Co. v. Rutenberg, 147 App. Div. 533, 535.) In any event, the transaction here involved does not come within the purview of the statute. (International Fuel & Iron Corp. v. Donner Steel Co., 242 N. Y. 224, 230; Penn Collieries Co. v. Mc Keever, 183 id. 98, 103.) Lazansky, P. J., Carswell, Adel, Taylor and Close, JJ., concur.