Empire Artists Materials v. Small

Appellate Terms of the Supreme Court of New York

Empire Artists Materials v. Small

28 Misc. 2d 502, 219 N.Y.S.2d 647, 1960 N.Y. Misc. LEXIS 2402

CourtAppellate Terms of the Supreme Court of New York

DecidedSeptember 29, 1960

StatusPublished

This text of 28 Misc. 2d 502 (Empire Artists Materials v. Small) 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

Empire Artists Materials v. Small, 28 Misc. 2d 502, 219 N.Y.S.2d 647, 1960 N.Y. Misc. LEXIS 2402 (N.Y. Ct. App. 1960).

Pincite

Opinion

Per Curiam.

Close issues of fact are presented as to whether the artists’ articles in question, furnished to defendant wife, are necessaries, and if not, whether they were purchased for the defendant husband’s account, which issues should be determined upon a trial. Moreover, while section 222-a of the Civil Practice Act specifically authorizes a partnership to sue or be sued in its partnership name, the fact that it is a partnership and who the persons are that comprise such a partnership should be established upon the trial or in the moving papers for summary judgment. It was therefore error to order summary judgment in the absence of such proof of the partnership.

The judgment and order should be reversed, with $10 costs, and the motion for summary judgment against defendant Sylvia Carewe Small denied.

Hoestadter and Aurelio, JJ., concur; Steuer, J. P., dissents and votes to affirm.

Judgment and order reversed, etc.

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Per Curiam.

Close issues of fact are presented as to whether the artists’ articles in question, furnished to defendant wife, are necessaries, and if not, whether they were purchased for the defendant husband’s account, which issues should be determined upon a trial. Moreover, while section 222-a of the Civil Practice Act specifically authorizes a partnership to sue or be sued in its partnership name, the fact that it is a partnership and who the persons are that comprise such a partnership should be established upon the trial or in the moving papers for summary judgment. It was therefore error to order summary judgment in the absence of such proof of the partnership.

The judgment and order should be reversed, with $10 costs, and the motion for summary judgment against defendant Sylvia Carewe Small denied.

Hoestadter and Aurelio, JJ., concur; Steuer, J. P., dissents and votes to affirm.

Judgment and order reversed, etc.

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Bluebook (online)

28 Misc. 2d 502, 219 N.Y.S.2d 647, 1960 N.Y. Misc. LEXIS 2402, Counsel Stack Legal Research, https://law.counselstack.com/opinion/empire-artists-materials-v-small-nyappterm-1960.