Cook v. Bauman

Appellate Terms of the Supreme Court of New York

Cook v. Bauman

128 Misc. 23, 217 N.Y.S. 187, 1926 N.Y. Misc. LEXIS 1070

CourtAppellate Terms of the Supreme Court of New York

DecidedJanuary 15, 1926

StatusPublished

This text of 128 Misc. 23 (Cook v. Bauman) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cook v. Bauman, 128 Misc. 23, 217 N.Y.S. 187, 1926 N.Y. Misc. LEXIS 1070 (N.Y. Ct. App. 1926).

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Opinion

Per Curiam.

Judgment unanimously reversed upon the law, with ten dollars costs, and motion for summary judgment denied, with ten dollars costs.

Motions for summary judgment cannot be determined by passing upon controverted questions of fact. If the affidavits submitted in opposition state facts which, if true, would constitute a defense, the motion cannot be granted. It is immaterial whether the plaintiff denies those statements or whether they remain undenied. In neither case can the motion be granted. It was error for the court below to refuse to consider the answering affidavits on the ground that copies had not been served upon the attorneys for the plaintiff as directed and that the plaintiff had not had an [24]*24opportunity to reply to them. The affidavits in opposition had been filed and should have been considered. Those papers set forth facts which, if true, would constitute a defense.

Present, Cropsey, MacCrate and Lewis, JJ.

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Per Curiam.

Judgment unanimously reversed upon the law, with ten dollars costs, and motion for summary judgment denied, with ten dollars costs.

Motions for summary judgment cannot be determined by passing upon controverted questions of fact. If the affidavits submitted in opposition state facts which, if true, would constitute a defense, the motion cannot be granted. It is immaterial whether the plaintiff denies those statements or whether they remain undenied. In neither case can the motion be granted. It was error for the court below to refuse to consider the answering affidavits on the ground that copies had not been served upon the attorneys for the plaintiff as directed and that the plaintiff had not had an [24]*24opportunity to reply to them. The affidavits in opposition had been filed and should have been considered. Those papers set forth facts which, if true, would constitute a defense.

Present, Cropsey, MacCrate and Lewis, JJ.

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Bluebook (online)

128 Misc. 23, 217 N.Y.S. 187, 1926 N.Y. Misc. LEXIS 1070, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cook-v-bauman-nyappterm-1926.