Bliss v. Hamilton

228 A.D. 827

Opinion

Order denying plaintiff’s motion for summary judgment under rulo 113 of the Rules of Civil Practice reversed upon the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leavo, however, to defendant to move for a rehearing of the motion, at which rehearing he may interpose an affidavit, as required by rule 113, in which may bo incorporated evidentiary facts disclosing a triable fact under the answer herein with respect to ’the amount due under the bond, or in any other respect. The defendant having interposed no affidavit showing a triable issue, the motion should have been granted. Opportunity should be afforded the defendant to avail himself of his rights under rule 113 if he be so advised and the facts justify his doing so. Lazansky, P. J., Young, Carswell, Scudder and Tompkins, JJ., concur.