Cardinal Lumber Co. v. Lincoln Park Builders Supply, Inc.

Appellate Division of the Supreme Court of New York

Cardinal Lumber Co. v. Lincoln Park Builders Supply, Inc.

8 A.D.2d 839, 190 N.Y.S.2d 207, 1959 N.Y. App. Div. LEXIS 7882

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 22, 1959

StatusPublished

This text of 8 A.D.2d 839 (Cardinal Lumber Co. v. Lincoln Park Builders Supply, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Cardinal Lumber Co. v. Lincoln Park Builders Supply, Inc., 8 A.D.2d 839, 190 N.Y.S.2d 207, 1959 N.Y. App. Div. LEXIS 7882 (N.Y. Ct. App. 1959).

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Opinion

In an action to recover a balance due for goods sold and delivered, and for other relief, the appeal is (1) from an order granting respondent’s motion for partial summary judgment, and denying appellant’s cross motion for partial summary judgment, and (2) from the judgment entered thereon. Order modified by striking therefrom the ordering paragraphs and by substituting therefor the following: “ Ordered, that the plaintiff’s motion and the defendant’s cross motion be and the same hereby are in all respects denied.” As so modified, order unanimously affirmed, without costs, and judgment vacated. In our opinion, the record discloses issues of fact which should not have been decided summarily on motion. If it be assumed that the affidavit of appellant’s president in answer to respondent’s motion attempted to assert a defense of accord and satisfaction, appellant was not precluded from asserting that defense in opposition to the motion because it had not been pleaded (cf. Curry v. Mackenzie, 239 N. Y. 267). Present — Nolan, P. J., Beldock, Ughetta, Hallinan and Kleinfeld, JJ.

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In an action to recover a balance due for goods sold and delivered, and for other relief, the appeal is (1) from an order granting respondent’s motion for partial summary judgment, and denying appellant’s cross motion for partial summary judgment, and (2) from the judgment entered thereon. Order modified by striking therefrom the ordering paragraphs and by substituting therefor the following: “ Ordered, that the plaintiff’s motion and the defendant’s cross motion be and the same hereby are in all respects denied.” As so modified, order unanimously affirmed, without costs, and judgment vacated. In our opinion, the record discloses issues of fact which should not have been decided summarily on motion. If it be assumed that the affidavit of appellant’s president in answer to respondent’s motion attempted to assert a defense of accord and satisfaction, appellant was not precluded from asserting that defense in opposition to the motion because it had not been pleaded (cf. Curry v. Mackenzie, 239 N. Y. 267). Present — Nolan, P. J., Beldock, Ughetta, Hallinan and Kleinfeld, JJ.

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Bluebook (online)

8 A.D.2d 839, 190 N.Y.S.2d 207, 1959 N.Y. App. Div. LEXIS 7882, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cardinal-lumber-co-v-lincoln-park-builders-supply-inc-nyappdiv-1959.

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