Emley v. Gray

263 A.D. 894, 32 N.Y.S.2d 537, 1942 N.Y. App. Div. LEXIS 7254

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 26, 1942
• Status: Published

Opinion

Order granting plaintiff’s motion for summaiy judgment and the judgment entered thereon reversed on the law, 'without costs, and the motion for summary judgment denied, without costs. The plaintiff sues to recover certain arrears of alimony due her under a separation agreement made by the defendant’s testate; The defendant executor has denied that he has any knowledge or information sufficient to form a belief as to' the truth of the allegations in the plaintiff’s complaint. The affidavits submitted failed to establish that the defendant has such factual knowledge as to make his denial worthless. It may be that the plaintiff will succeed at a trial, but where the action is against a representative of an estate and under the facts present here, the plaintiff is required to establish her claim by formal proof. (Friedman v. Friedman, 251 App. Div. 835; Woodmere Academy v. Moskowitz, 212 id. 457.) Lazansky, P. J., Carswell, Johnston, Adel and Close, JJ., concur.