Daly v. Wallace

Appellate Division of the Supreme Court of New York

Daly v. Wallace

2 A.D.2d 871, 156 N.Y.S.2d 869, 1956 N.Y. App. Div. LEXIS 4088

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

DecidedOctober 31, 1956

StatusPublished

This text of 2 A.D.2d 871 (Daly v. Wallace) 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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Daly v. Wallace, 2 A.D.2d 871, 156 N.Y.S.2d 869, 1956 N.Y. App. Div. LEXIS 4088 (N.Y. Ct. App. 1956).

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Opinion

Order affirmed, with $10 costs and disbursements. Memorandum: Hpon the present record the decision of Special Term was correct. The only factual issue that might have presented a triable issue was the right of petitioner to be restored to [872]*872the position of housing project manager of Hyde Park Village Project. The answer did not contain any denials of the allegations of the petitioner upon this subject but might be construed as alleging facts in an attempt to litigate this factual issue. Section 1291 of the Civil Practice Act requires, however, that affidavits be submitted with the answer showing such evidentiary facts as entitle respondents to a trial of any issue of fact. This was not done and Special Term properly disposed of the matter in the same manner as upon a motion for summary judgment under rule 113 of the Rules of Civil Practice (Matter of Rotkiewicz v. Department of Mental Hygiene, 283 App. Div. 458, 461, affd. 307 N. Y. 847). All concur. (Appeal from an order of Niagara Special Term directing that petitioner be reinstated to his position as housing project manager.) Present—■ McCurn, P. J., Vaughan, Wheeler, Williams and Bastow, JJ.

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Order affirmed, with $10 costs and disbursements. Memorandum: Hpon the present record the decision of Special Term was correct. The only factual issue that might have presented a triable issue was the right of petitioner to be restored to [872]*872the position of housing project manager of Hyde Park Village Project. The answer did not contain any denials of the allegations of the petitioner upon this subject but might be construed as alleging facts in an attempt to litigate this factual issue. Section 1291 of the Civil Practice Act requires, however, that affidavits be submitted with the answer showing such evidentiary facts as entitle respondents to a trial of any issue of fact. This was not done and Special Term properly disposed of the matter in the same manner as upon a motion for summary judgment under rule 113 of the Rules of Civil Practice (Matter of Rotkiewicz v. Department of Mental Hygiene, 283 App. Div. 458, 461, affd. 307 N. Y. 847). All concur. (Appeal from an order of Niagara Special Term directing that petitioner be reinstated to his position as housing project manager.) Present—■ McCurn, P. J., Vaughan, Wheeler, Williams and Bastow, JJ.

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Bluebook (online)

2 A.D.2d 871, 156 N.Y.S.2d 869, 1956 N.Y. App. Div. LEXIS 4088, Counsel Stack Legal Research, https://law.counselstack.com/opinion/daly-v-wallace-nyappdiv-1956.

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